The Owners – Strata Plan No. 77109 v Gokani-Robins Pty Ltd (No 2) [2023] NSWCATAP 165

The Owners – Strata Plan No. 77109 v Gokani-Robins Pty Ltd (No 2) [2023] NSWCATAP 165

Rule 38 did not apply because the first instance proceeding sought an order declaring a by-law invalid and involved no amount claimed or in dispute exceeding $30,000, so r 38A had no application and the respondents had to establish special circumstances under s 60. The respondents' asserted circumstances, including the appellant's lack of success, legal representation, resources, volume of material, alleged repetition of arguments, alleged non-compliance, amendment of the by-law, and conduct of the appeal, did not make the proceeding out of the ordinary or justify a costs order. The stay costs had already been determined, and s 104 of the Strata Schemes Management Act 2015 (NSW) did not...

Jurisdiction
Australia
Judgment Date
21 June 2023
Procedural Posture
Application for Costs in an Internal Appeal Concerning a Strata by Law Validity Dispute / Appeal Panel on the Papers After Dismissal of the Appeal
Outcome
Application for costs dismissed; hearing of the costs application dispensed with.
Legal Topics
['costs in NCAT Proceedings' 'special Circumstances Under S 60 of the Civil and Administrative Tribunal Act 2013 (nsw)' 'application of R 38 and R 38 a of the Civil and Administrative Tribunal Rules 2014 (nsw)' 'strata Levies for Costs' 'validity of Strata by Laws']
['civil Procedure' 'costs' 'strata Title'] ['costs in NCAT Proceedings' 'special Circumstances Under S 60 of the Civil and Administrative Tribunal Act 2013 (nsw)' 'application of R 38 and R 38 a of the Civil and Administrative Tribunal Rules 2014 (nsw)' 'strata Levies for Costs' 'validity of Strata by Laws']

Case Brief

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Procedural Posture

Application for Costs in an Internal Appeal Concerning a Strata by Law Validity Dispute / Appeal Panel on the Papers After Dismissal of the 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 r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) applied to the appeal by operation of r 38A because the amount claimed or in dispute at first instance was more than $30,000.' "Whether special circumstances under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) warranted an order that the appellant pay the respondents' costs." 'Whether costs of the stay application already dealt with by the December Costs Order should be included in any further costs order.' 'Whether orders could or should be made under ss 104 or 232 of the Strata Schemes Management Act 2015 (NSW) concerning levying of costs.']

Ratio Decidendi

Rule 38 did not apply because the first instance proceeding sought an order declaring a by-law invalid and involved no amount claimed or in dispute exceeding $30,000, so r 38A had no application and the respondents had to establish special circumstances under s 60. The respondents' asserted circumstances, including the appellant's lack of success, legal representation, resources, volume of material, alleged repetition of arguments, alleged non-compliance, amendment of the by-law, and conduct of the appeal, did not make the proceeding out of the ordinary or justify a costs order. The stay costs had already been determined, and s 104 of the Strata Schemes Management Act 2015 (NSW) did not...

Court Disposition

Application for costs dismissed; hearing of the costs application dispensed with.

Orders

  • ['A hearing of the application for costs is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).' 'The application for costs is dismissed.']