The Owners – Strata Plan No 58068 v Cooper (Costs) [2020] NSWCATAP 198

The Owners – Strata Plan No 58068 v Cooper (Costs) [2020] NSWCATAP 198

Special circumstances existed under s 60 because the validity of the no pets by-law raised out of the ordinary complexity, including statutory construction of s 139(1) of the Strata Schemes Management Act 2015 (NSW) in its statutory context, and the appeal involved issues not previously determined by the Appeal...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
29 September 2020
Procedural Posture
Costs Application in NCAT Appeal Panel Proceedings / On the Papers After the Appellant Succeeded in the Substantive Appeal
Outcome
Costs application allowed in part; hearing dispensed with by consent; costs ordered for the appellant at first instance and on appeal.
Legal Topics
['special Circumstances for Costs in Ncat' 'statutory Construction' 'complexity of Proceedings' 'validity and Enforcement of Strata by Laws' 'no Pets by Law']
['costs' 'civil Procedure' 'strata Schemes'] ['special Circumstances for Costs in Ncat' 'statutory Construction' 'complexity of Proceedings' 'validity and Enforcement of Strata by Laws' 'no Pets by Law']

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Procedural Posture

Costs Application in NCAT Appeal Panel Proceedings / On the Papers After the Appellant Succeeded in the Substantive Appeal

Legal Issues

  1. 1 ['Whether a hearing of the costs application should be dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).' 'Whether special circumstances under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) warranted an award of costs for the proceedings at first instance.' 'Whether special circumstances under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) warranted an award of costs for the appeal.' "How the discretion as to costs should be exercised, including whether allowance should be made for the Owners Corporation's unsuccessful penalty application."]

Ratio Decidendi

Special circumstances existed under s 60 because the validity of the no pets by-law raised out of the ordinary complexity, including statutory construction of s 139(1) of the Strata Schemes Management Act 2015 (NSW) in its statutory context, and the appeal involved issues not previously determined by the Appeal Panel. For first instance costs, the Owners Corporation was entitled to costs but only 70% because it was unsuccessful on the penalty application and some issues were relatively straightforward; additional costs caused by the summons and privilege position supported an award. For appeal costs, the appellant was successful on the complex statutory construction issues and the...

Court Disposition

Costs application allowed in part; hearing dispensed with by consent; costs ordered for the appellant at first instance and on appeal.

Orders

  • ['By consent, an order is made pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) dispensing with a hearing of the application for costs.' 'In each of the applications SC19/24722 and SC19/18982, the Coopers are to pay 70% of the costs of The Owners Strata Plan No 58068, such costs to be as...