The Owners - Strata Plan No 6097 v Placanica [2019] NSWCATAP 200

The Owners - Strata Plan No 6097 v Placanica [2019] NSWCATAP 200

Rule 38A was not enlivened because the first instance proceedings were enabled by Sch 3 of the Strata Schemes Management Act 2015 and that Act did not contain costs provisions differing from s 60 of the Civil and Administrative Tribunal Act 2013. Special circumstances existed under s 60 because the appeal was based on a misconception of the Tribunal's jurisdiction, unreasonably prolonged the proceedings, and had no tenable basis in law. Costs were awarded on the ordinary basis, not indemnity basis, because the alleged offer was conditional on entry into a deed, contemplated further provisions, and was not sufficiently clear to support a finding that rejection was unreasonable.

Jurisdiction
Australia
Judgment Date
09 August 2019
Procedural Posture
Costs Application on Appeal in Strata Penalty Proceedings / Appeal Panel Determination on the Papers After Dismissal of the Appeal
Outcome
The lot owners' costs application was allowed in part; a hearing was dispensed with and the Owners Corporation was ordered to pay the lot owners' costs of the appeal on the ordinary basis as agreed or assessed.
Legal Topics
['costs on Appeal' 'special Circumstances for Costs' 'internal Appeal Jurisdiction' 'rule 38 a Costs in Internal Appeals' 'indemnity Costs']
['strata Schemes' 'civil Procedure' 'costs'] ['costs on Appeal' 'special Circumstances for Costs' 'internal Appeal Jurisdiction' 'rule 38 a Costs in Internal Appeals' 'indemnity Costs']

Case Brief

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Procedural Posture

Costs Application on Appeal in Strata Penalty Proceedings / Appeal Panel Determination on the Papers After Dismissal of the Appeal

Legal Issues

  1. 1 ['Whether r 38A of the Civil and Administrative Tribunal Rules 2014 required the Appeal Panel to apply first instance costs provisions rather than s 60 of the Civil and Administrative Tribunal Act 2013.' 'Whether special circumstances under s 60 of the Civil and Administrative Tribunal Act 2013 warranted an award of costs to the lot owners.' "Whether the lot owners should receive indemnity costs based on the Owners Corporation's rejection of an offer of compromise." 'Whether the costs application could be determined without a hearing.']

Ratio Decidendi

Rule 38A was not enlivened because the first instance proceedings were enabled by Sch 3 of the Strata Schemes Management Act 2015 and that Act did not contain costs provisions differing from s 60 of the Civil and Administrative Tribunal Act 2013. Special circumstances existed under s 60 because the appeal was based on a misconception of the Tribunal's jurisdiction, unreasonably prolonged the proceedings, and had no tenable basis in law. Costs were awarded on the ordinary basis, not indemnity basis, because the alleged offer was conditional on entry into a deed, contemplated further provisions, and was not sufficiently clear to support a finding that rejection was unreasonable.

Court Disposition

The lot owners' costs application was allowed in part; a hearing was dispensed with and the Owners Corporation was ordered to pay the lot owners' costs of the appeal on the ordinary basis as agreed or assessed.

Orders

  • ['With respect to the application of the lot owners that their costs of the appeal by paid by the Owners Corporation, a hearing is dispensed with; and' "The Owners Corporation (the Appellant) shall pay the lot owners' (the Respondents) costs of the appeal on the ordinary basis as agreed or as assessed."]