The Owners Strata Plan No 74698 v Jacinta Investments Pty Ltd (No 2) [2022] NSWCATAP 11

The Owners Strata Plan No 74698 v Jacinta Investments Pty Ltd (No 2) [2022] NSWCATAP 11

Because the damages claim and appeal involved an amount in dispute of $266,018.80, r 38 applied at first instance and, through r 38A, on appeal, so Jacinta did not need to establish special circumstances for costs. The Tribunal's 20% reduction at first instance remained appropriate given Jacinta's withdrawn claims...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
17 January 2022
Procedural Posture
Application for Costs in an Internal Appeal Concerning Strata Proceedings / Appeal Panel, on the Papers, After the Appeal Was Allowed in Part
Outcome
Costs application determined; hearing dispensed with; first instance costs order affirmed; respondent awarded 90% of appeal costs; respondent excluded from levies for costs payable under the costs orders.
Legal Topics
['costs in Consumer and Commercial Division Proceedings' 'costs in Internal Appeals' 'application of R 38 and R 38 a of the Civil and Administrative Tribunal Rules, 2014 (nsw)' 'common Property Rights by Law' 'levies for Costs Orders']
['practice and Procedure' 'costs' 'strata Schemes'] ['costs in Consumer and Commercial Division Proceedings' 'costs in Internal Appeals' 'application of R 38 and R 38 a of the Civil and Administrative Tribunal Rules, 2014 (nsw)' 'common Property Rights by Law' 'levies for Costs Orders']

Source-derived case record

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Procedural Posture

Application for Costs in an Internal Appeal Concerning Strata Proceedings / Appeal Panel, on the Papers, After the Appeal Was Allowed in Part

Legal Issues

  1. 1 ['Whether a hearing should be dispensed with for the costs application.' 'What costs rules applied to the proceedings at first instance and the appeal.' 'Whether the Appeal Panel should vary the costs order made by the Tribunal at first instance.' 'Whether a costs order should be made in respect of the appeal and in what amount.' 'Whether the respondent should be excluded from levies in respect of costs payable under the costs orders.' 'Whether the Tribunal should deal with a request about post-judgment interest raised in reply submissions.']

Ratio Decidendi

Because the damages claim and appeal involved an amount in dispute of $266,018.80, r 38 applied at first instance and, through r 38A, on appeal, so Jacinta did not need to establish special circumstances for costs. The Tribunal's 20% reduction at first instance remained appropriate given Jacinta's withdrawn claims and partial failure on transfer of common property, so the original 80% costs order was affirmed. On appeal, Jacinta was overall successful, including on the damages-related levy issue and on obtaining common property rights relief, but the Owners Corporation achieved substantive success in setting aside the transfer of common property; a 10% allowance for that success was...

Court Disposition

Costs application determined; hearing dispensed with; first instance costs order affirmed; respondent awarded 90% of appeal costs; respondent excluded from levies for costs payable under the costs orders.

Orders

  • ['Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with a hearing in respect of the application for costs.' 'The costs order made 20 July 2020 in proceedings SC 19/00024 and SC 19/24115 is affirmed.' "The appellant is to pay 90% of the respondent's costs of the appeal as...