Kaye v The Owners – Strata Plan No 4350 [2022] NSWCATAP 248

Kaye v The Owners – Strata Plan No 4350 [2022] NSWCATAP 248

The Appeal Panel dispensed with a hearing because the costs issue could be adequately determined on the written material. It declined to determine costs of the first instance proceedings because there had been no first instance costs decision and the original Senior Member was best placed to decide that application. The stay application was part and parcel of the appeal. Special circumstances were established because the dispute concerned valuable property rights in a strata scheme, was complex and significant to the parties, the appeal decision exceeded 40 pages, both sides had leave for legal representation by solicitors and experienced counsel, and although the appellants identified an...

Jurisdiction
Australia
Judgment Date
28 July 2022
Procedural Posture
Costs Application in Internal Appeal Proceedings / Appeal Panel Determination on the Papers After Appeal Decision
Outcome
Respondent awarded costs of the appeal, including the stay application; first instance costs left to be determined by the Tribunal at first instance.
Legal Topics
['costs' 'special Circumstances' 'internal Appeal' 'application for Stay' 'dispensing With Hearing']
['civil Procedure' 'strata Schemes' 'tribunal Practice and Procedure'] ['costs' 'special Circumstances' 'internal Appeal' 'application for Stay' 'dispensing With Hearing']

Case Brief

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Procedural Posture

Costs Application in Internal Appeal Proceedings / Appeal Panel Determination on the Papers After Appeal Decision

Legal Issues

  1. 1 ['Whether a hearing should be dispensed with for the costs application.' 'Whether the Appeal Panel should make a costs order in relation to the first instance proceedings.' 'Whether the costs of the stay application should be treated as part of the appeal costs.' 'Whether special circumstances under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) warranted an award of costs to the respondent.' 'Whether the discretion to award costs should be exercised in favour of the respondent.']

Ratio Decidendi

The Appeal Panel dispensed with a hearing because the costs issue could be adequately determined on the written material. It declined to determine costs of the first instance proceedings because there had been no first instance costs decision and the original Senior Member was best placed to decide that application. The stay application was part and parcel of the appeal. Special circumstances were established because the dispute concerned valuable property rights in a strata scheme, was complex and significant to the parties, the appeal decision exceeded 40 pages, both sides had leave for legal representation by solicitors and experienced counsel, and although the appellants identified an...

Court Disposition

Respondent awarded costs of the appeal, including the stay application; first instance costs left to be determined by the Tribunal at first instance.

Orders

  • ['A hearing is dispensed with.' "The appellant is to pay the respondent's costs as agreed or as assessed."]