The Owners – Strata Plan No 74835 v Pullicin (Costs) [2020] NSWCATAP 49

The Owners – Strata Plan No 74835 v Pullicin (Costs) [2020] NSWCATAP 49

The Appeal Panel had no power to make a costs order for the first instance proceedings because no first instance costs decision was under appeal and the first instance proceedings had been adjourned part heard. The owners corporation was entirely successful on the appeal, there was no disentitling conduct, the new jurisdiction point was explained by the later decision in Shih, adoption of submissions in related proceedings did not justify departure from the usual rule, and the proceedings were a commercial dispute between private entities rather than public interest litigation warranting no order as to costs. The respondents were therefore ordered to pay the owners corporation's costs of...

Jurisdiction
Australia
Judgment Date
17 March 2020
Procedural Posture
Costs on Internal Appeal in Strata Proceedings / Appeal Panel Determination on the Papers
Outcome
Costs ordered for the appellant on the appeal; no first instance costs order made by the Appeal Panel; indemnity costs refused.
Legal Topics
['costs on Appeal' 'costs at First Instance' 'internal Appeal Jurisdiction' 'public Interest Litigation' 'strata Schemes Statutory Duty']
['civil Procedure' 'costs' 'strata Law' 'administrative Law'] ['costs on Appeal' 'costs at First Instance' 'internal Appeal Jurisdiction' 'public Interest Litigation' 'strata Schemes Statutory Duty']

Case Brief

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Procedural Posture

Costs on Internal Appeal in Strata Proceedings / Appeal Panel Determination on the Papers

Legal Issues

  1. 1 ['Whether the Appeal Panel had power to make a costs order in the first instance Tribunal proceedings where no first instance costs decision had been made.' 'Whether costs of the appeal should be ordered in favour of the successful owners corporation.' "Whether the respondents' reliance on a new jurisdiction point taken on appeal, adoption of submissions in related proceedings, or the public importance of the issue justified departure from the usual costs rule." 'Whether appeal costs should be awarded on an indemnity basis.']

Ratio Decidendi

The Appeal Panel had no power to make a costs order for the first instance proceedings because no first instance costs decision was under appeal and the first instance proceedings had been adjourned part heard. The owners corporation was entirely successful on the appeal, there was no disentitling conduct, the new jurisdiction point was explained by the later decision in Shih, adoption of submissions in related proceedings did not justify departure from the usual rule, and the proceedings were a commercial dispute between private entities rather than public interest litigation warranting no order as to costs. The respondents were therefore ordered to pay the owners corporation's costs of...

Court Disposition

Costs ordered for the appellant on the appeal; no first instance costs order made by the Appeal Panel; indemnity costs refused.

Orders

  • ["Mr and Mrs Pullicin are to pay The Owners – Strata Plan No 74835's costs of these proceedings as agreed, or if not agreed, as assessed."]