Owners Corporation SP 79417 v Trajcevski (No.2) [2017] NSWCATAP 173

Owners Corporation SP 79417 v Trajcevski (No.2) [2017] NSWCATAP 173

Rule 38 applied to the first instance Home Building Act proceedings because they were allocated to the Consumer and Commercial Division and the amount claimed was $400,000, so Rule 38A required the Appeal Panel to apply Rule 38 to the appeal costs application without needing to find special circumstances. Indemnity costs were refused because, although the appellant was unsuccessful, its main appeal ground was not unarguable or without real prospects of success when lodged and there was no misconduct. The respondents, as the successful parties and with no disentitling conduct alleged, were entitled to their costs of and incidental to the appeal on the ordinary basis.

Jurisdiction
Australia
Judgment Date
16 August 2017
Procedural Posture
Internal Appeal Costs Application in the NSW Civil and Administrative Tribunal Appeal Panel / Post Decision Costs Determination After the Appellant's Application for Leave to Appeal Was Refused and Its Appeal Was Dismissed
Outcome
Indemnity costs refused; respondents awarded costs of the appeal on the ordinary basis.
Legal Topics
['indemnity Costs' 'ordinary Costs' 'internal Appeals' 'special Circumstances for Costs' 'prospects of Success']
['costs' 'civil Procedure' 'tribunal Procedure'] ['indemnity Costs' 'ordinary Costs' 'internal Appeals' 'special Circumstances for Costs' 'prospects of Success']

Case Brief

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Procedural Posture

Internal Appeal Costs Application in the NSW Civil and Administrative Tribunal Appeal Panel / Post Decision Costs Determination After the Appellant's Application for Leave to Appeal Was Refused and Its Appeal Was Dismissed

Legal Issues

  1. 1 ['Whether Rule 38A of the Civil and Administrative Tribunal Rules 2014 required the Appeal Panel to apply the first instance costs provisions in Rule 38 when deciding costs of the internal appeal.' 'Whether the respondents should receive indemnity costs of the appeal.' 'Whether the respondents should receive costs of the appeal on the ordinary basis.']

Ratio Decidendi

Rule 38 applied to the first instance Home Building Act proceedings because they were allocated to the Consumer and Commercial Division and the amount claimed was $400,000, so Rule 38A required the Appeal Panel to apply Rule 38 to the appeal costs application without needing to find special circumstances. Indemnity costs were refused because, although the appellant was unsuccessful, its main appeal ground was not unarguable or without real prospects of success when lodged and there was no misconduct. The respondents, as the successful parties and with no disentitling conduct alleged, were entitled to their costs of and incidental to the appeal on the ordinary basis.

Court Disposition

Indemnity costs refused; respondents awarded costs of the appeal on the ordinary basis.

Orders

  • ["The Owners – Strata Plan No. 79417 must pay the respondents' costs of and incidental to these appeal proceedings such costs if not agreed to be assessed on the basis set out in the legal costs legislation as defined in section 3A of the Legal Profession Uniform Law Application Act 2014"]