Bartlett v The Owners �e" Strata Plan No 12375 [No 2] [2025] NSWCATCD 168;

1. On or before 7 March 2025 the present applicant will notify the Tribunal and the present respondent (OC) by email whether or not the applicant seeks to join the current lot owners (the applicant's successors in title who purchased after the filing of the application in these proceedings) with their consent as co-applicants, or as respondents, or not at all.

2. On the notification under order 1 and noting no objection to this course by the OC, the current lot owners will or will not be joined in accord with the terms of the notification.

3. Order that on or before 21 March 2025 the OC file and serve by email its written submissions on the effect of any joinder of the current lot owners and the correct construction of order 2 made by consent on 29 March 2022 in renewal proceedings SC 22/05057.

4. Order that on or before 4 April 2025 the applicant and any newly-joined party file and serve by email its or their written submissions in response to the written submissions under order 3.

5. Order that, as separate questions and in advance of hearing and determination of the rest of the proceedings, the following are to be determined: whether the Tribunal has jurisdiction to hear the application; the correct characterisation of consent order 2 made on 29 March 2022 in renewal proceedings SC 22/05057.

6. Adjourn the proceedings and any further production questions under the summons dated 4 February 2025 to 1 May 2025 unless the separate questions are determined earlier by other than dismissal of the application, in which case an earlier date can be allocated.

1. On 10 March 2025 the times in my procedural orders made on 21 February 2025 were varied on the applicant's request and over the objection of the OC to, respectively, 21 March for order 1, 4 April for order 2 and 18 April for order 3.
2. In compliance with those orders, the applicant advised the Tribunal on 21 March 2025 that the current lot owners, to whom he had sold after filing his application, were not joined as co-applicants and that he did not seek to join them as respondents. I have assumed that the current lot owners did not consent to joinder as co-applicants.
3. Also in compliance with the extended order time, the applicant and his solicitor filed and served written submissions on 14 April 2025. They were not in "response" to the OC's further written submissions on those questions because nothing further had been filed or served by the OC, but they were responsive to the OC's existing written submissions filed 21 February 2025 which (in the absence of further joinder) dealt with topics of the separate questions (among other matters). I read the applicant's written submissions in conjunction with each party's existing material on the issues raised by the separate questions in determining those questions on the papers.
4. At a directions hearing on 1 May 2025 the parties consented to the separate questions being determined on the basis of the parties' written submissions without the need for a hearing.
5. The separate questions in substance were: (1) whether the Tribunal has jurisdiction to hear the application in circumstances where the applicant sold the lot and paid the contested levies after filing the application and the new lot owners are not parties to the proceedings, and (2) the correct characterisation of consent order 2 made on 29 March 2022 in renewal proceedings SC 22/05057.
6. Both parties filed and served detailed written submissions on the separate questions which were completely in contest.
7. On 10 July 2025 I made orders in respect of answering the separate questions in favour of the applicant and set out the way ahead for consideration and disposal of the balance of the proceedings, in which I regarded myself as part-heard. The orders were as follows:

(1) Determine the separate questions in order 5 made 21 February 2025 as follows:

Question 1: Does the Tribunal have jurisdiction to hear the application?

Answer: yes, by reason of the applicant's continuing standing since he was a lot owner at time of filing the application.

Question 2: What is the correct characterisation of order 2 made on 29 March 2022 in renewal proceedings SC 22/05057?

Answer: Order 2 recognises a credit of $3,000 against the amount found by the Tribunal as owing to the applicant under the agreement noted pursuant to s 104 of the Strata Schemes Management Act 2015 (NSW) order 3 made on 29 March 2022 in renewal proceedings SC 22/05057.

(2) Adjourn the proceedings part-heard before me for a remote access directions hearing (estimate 45 minutes), unless the proceedings are earlier resolved, to a date after 25 July 2025, at which directions hearing the parties are to address the making of orders which deal with the following (to the extent not already resolved): any further production under the outstanding summons issued on 4 February 2025 to the OC and any argument concerning the summons (which should be ready to be argued and determined at the directions hearing); directions for further evidence and submissions to prepare the remaining issues for final hearing; the estimated length of any hearing; whether the remaining issues can be determined on the papers; any challenge to the order on costs in order 3.

(3) Reserve the costs of the preparation for and determination of the separate question.

35. With both questions answered in favour of the applicant, the current proceedings will need to have their remaining aspects determined if they cannot be resolved by appropriate co-operative inquiry and agreement between the parties. Those remaining aspects are the sufficiency of existing production under the summons and, following the finalisation of that issue, the amount of refund to the applicant and any argument on special circumstances justifying an award of costs under s 60 of the Civil and Administrative Tribunal Act 2013 (NCAT Act).

36. Accordingly, after a short interval to see if the parties can sensibly resolve the question of any remaining production under the summons and perhaps agree the other remaining issues, there should be a directions hearing to give a timetable for any further evidence and submissions and to determine whether the remaining issues can be determined on the papers or require a further hearing. I consider that I am part-heard in the overall proceedings.

1. At a directions hearing on 11 September 2025 I had before me consent orders filed the preceding evening out of Registry hours by email. With an appropriate modification to recognise that the directions hearing could not be vacated at that late juncture, I made the substance of the balance of the requested consent orders as follows:

1. On or before 9 October 2025 The Owners - Strata Plan No 12375 is ordered to pay Stephen Bartlett the amount of $6,092 including GST in relation to his proportion of the legal costs incurred in proceedings Nos SC 20/41055 and SC 22/05057 pursuant to s 232 of SSMA.

2. Applicant to file and serve submissions in relation to costs of the current proceedings on or before 25 September 2025.

3. Respondent to file and serve submissions in relation to costs of the current proceedings on or before 9 October 2025.

4. Note that the parties agree dispense with a hearing on costs and accordingly order that the Tribunal is to determine the costs application the subject of orders 2 and 3 on the papers without a hearing.

1. Under those orders I received detailed written submissions on costs on behalf of both parties. The applicant sought its costs of the proceedings on the ordinary basis to 20 February 2025 and on the indemnity basis (alternatively, the ordinary basis) thereafter. The OC said that each party should pay his or its own costs (an earlier filed version of the submission was said to contain an error and has not been looked at).

1. Both parties referred to the relevant principles in substance, which I have set out below.
2. The applicant said that special circumstances existed that justified the award of costs on the ordinary basis up to its rejected Calderbank offer on 20 February 2025 and thereafter on the indemnity basis. Its Calderbank offer was $4,500 on the claim for costs of the previous proceedings and $4,400 for its costs of the present proceedings, totalling $8,900.
3. The OC offered to credit $867.24 (which it acknowledged was an obligation under SSMA s 104 owed to the applicant) against its claim of $20,400 comprising $12,600 (85% of its solicitors' costs) and counsel's fees of $7,800, all inclusive of GST.

1. Section 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides as follows:

(1) Each party to proceedings in the Tribunal is to pay the party's own costs.

(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following -

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),

(g) any other matter that the Tribunal considers relevant.

(4) If costs are to be awarded by the Tribunal, the Tribunal may -

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs 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) or on any other basis.

(a) the costs of, or incidental to, proceedings in the Tribunal, and

(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.

1. It was common ground that the exception in r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules), which enlivens exercise of costs discretion having regard to the ordinary costs principles and rules without having to establish special circumstances, did not apply since the amount claimed or in dispute did not exceed $30,000.
2. The person seeking a costs order if the exception in rule 38 does not apply bears the onus, on the facts of each case, of establishing both special circumstances and that those circumstances warrant the making of an order as to costs, against whom and on what basis: Owners SP 63731 v B&G Trading PL [No 2] [2020] NSWCATAP 273 at [6]- [15]; Grasso v Owners SP 52399 [2022] NSWCATAP 91 at [12]. Whether and how discretion ought to be exercised requires, as well as the nature of the special circumstances, consideration in the context of principles and rules usually governing costs, including the compensatory basis for costs awards: Brodyn PL v Owners SP 73019 [No 2] [2016] NSWCATAP 224 at [24]- [26].
3. The principles and rules usually governing costs just referred to are authoritatively explored in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 and Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 and followed and applied in this Tribunal in Thompson v Chapman [2016] NSWCATAP 6 and Bonita v Shen [2016] NSWCATAP 159, citing earlier consistent authority, and more recently in Vella v Mir [No 3] [2020] NSWCATAP 17 at [28]- [31]. In summary:

(1) The exercise of the discretion is principled but involves impression and evaluation.

(2) The starting point for the exercise of costs discretion on the usual principles is that costs follow the event.

(3) "The event" is usually the overall outcome of the proceedings - did the successful party have to go to the Tribunal (in this case) to get what it achieved, rather than being offered at least that relief prior to commencement of the proceedings.

(4) If there are distinct, separate or dominant issues on which the party seeking relief did not succeed, that may be taken into account in the exercise of costs discretion, either as an award of costs of those issues to the party who had success on them or as a discount of the costs of the overall successful party, or some other appropriate exercise of principled discretion.

(5) There may be no order as to costs made (to the intent that each party pays its or their own costs) where there has been a measure of success on both sides_: Johnson t/as One Tree Constructions v Lukeman_ [2017] NSWCATAP 45 at [25]- [29]; applied in Oppidan Homes PL v Yang [2017] NSWCATAP 67.

(6) Costs are usually ordered on the ordinary basis as agreed or assessed, unless the parties tender material and/or make submissions that justify an award of costs on the indemnity basis as agreed or assessed, in whole or part.

(7) For an award of costs on other than the ordinary basis, a party's conduct of the proceedings themselves, or the nature of the proceedings themselves (for instance, misconceived), or unreasonable refusal of an offer (often when an outcome less favourable than an offer is achieved in the litigation), are considered.

1. Special circumstances means that the circumstances are out of the ordinary but not necessarily extraordinary or exceptional: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11].
2. At least some of the special circumstances given as examples in the inclusive list in s 60(3)(a)-(f) of the NCAT Act have resonance with the principles governing the award of indemnity costs. If special circumstances are required to be found in order to enliven the discretion to consider making a costs order, it is logical that such an order would be made on the ordinary basis unless there is something in extent or type beyond what justifies the finding of special circumstances in order to award costs on the indemnity basis. Otherwise the anomaly could arise that any special circumstance justified indemnity costs being ordered for the same reason as special circumstances were found.
3. Such an extension of special circumstances to justify exercise of discretion to award indemnity costs can be found, among other places, in consideration of a Calderbank offer.
4. Another extension of special circumstances to justify exercise of discretion to award indemnity costs can be found in the exceptions to the usual rule that each party pays its own costs on a compromise of proceedings without a determination on the merits.
5. The usual rule for compromise resolution is to avoid the situation where the application of the usual costs principles would involve the parties in the costs they have avoided by the consent resolution.
6. However, a party may make the case that a costs order on a consent resolution constitutes special circumstances and is justified, for example, because a party has acted so unreasonably preparatory to or in the proceedings that the other party should obtain the costs of the proceedings that it was forced to pursue to obtain the relief ultimately obtained by compromise, or because, after sustained litigated contest, one party has effectively surrendered to the other, or because (in rare instances) the court or tribunal has confidence that one party almost certainly would have succeeded even though both acted reasonably: Re Minister Immigration & Ethnic Affairs; ex parte Lai Quin [1997] HCA 6; (1997) 186 CLR 622 at 624-625; ASC v Australian Home Investments Ltd [1993] FCA 585; (1993) 44 FCR 194 at 201; One.Tel Ltd v Dep Commr of Taxation (2000) 101 FCR 548, [2000] FCA 270 at 553 [6]; ASIC v Rich [2003] NSWSC 297; Steffen v ANZ Banking Group Ltd [2009] NSWSC 883 at [29], [32]-[38]; Boensch v Pascoe [2010] NSWSC 1172; Knox v Bollen [2018] NSWCATAP 106 at [45]- [46].
7. The foregoing authorities include application of the principle to interlocutory steps that are the subject of a consent resolution, particularly if prior to consent they were conducted in an adversarial fashion. Absent an agreement of the parties or other clear guidance, they do not appear to include application to a partial resolution of the proceedings with the balance remaining in contest and requiring a curial determination, particularly where the consent aspect is incorporated into the same ordered outcome as the determined aspect.
8. As already mentioned, a touchstone of when it is appropriate to depart from the usual position of no order as to costs on a negotiated resolution is reasonableness (or otherwise) in commencing and continuing the litigation. In this process, variance of the negotiated outcome from offers embodied in Calderbank letters is a factor. The principles governing Calderbank offers, as with formal processes in court rules for offers of compromise such as those found in Uniform Civil Procedure Rules UCPR 23.26 and Pt 42 Div 3, operate generally in relation to disputes, including those ultimately determined by consent (where departure from the usual outcome of each party paying its own costs is justified on this or other bases) as well as those determined after contest.
9. The principles governing Calderbank offers were set out in the reasons of the Appeal Panel in Thompson v Chapman [2016] NSWCATAP 6 at [91] in reliance upon authority in the NSWCA and Supreme Court there cited including Miwa PL v Siantan Properties PL [No 2] [2011] NSWCA 344, to which can be added (among other authority) Hazeldene's Chicken Farm PL v Victorian Workcover Authority (No 2) (2005) 13 VR 435, [2005] VSCA 298, El-Wasfi v NSW; Kassas v NSW (No 2) [2018] NSWCA 27 and Croghan v Blacktown CC [2019] NSWCA 248 and authority there discussed. The effect of legal representation was discussed in Bajic v Paraskevopoulos [2018] NSWCATAP 205 at [27].
10. In summary: the offer must constitute a real and genuine compromise; rejection must be unreasonable in the circumstances; reasonableness of rejection is to be assessed at the time the offer is made, not with the armchair of hindsight; relevant factors in assessing unreasonableness include the stage of the proceedings when the offer was made, time allowed to consider the offer, extent of compromise in the offer, the offeree's prospects in the litigation at the time the offer was made, clarity of terms of the offer, whether an application for indemnity costs was foreshadowed in the event of rejection, and whether there was legal representation for the party considering the offer.
11. What triggers the assessment of the offer is what one actually achieves in the litigation outcome (by consent or contest) compared with the terms of the offer. However, the reasonableness of conduct in rejecting the offer is assessed at the point in time the offer is made, on the knowledge the offeree then has about litigious documentation and prospects. Circumstances can arise where "it may not be unreasonable to reject an offer, notwithstanding that the amount of the offer is reasonable and, in particular, notwithstanding that the offer (in the case of an offer made by a defendant) is greater than the damages that are awarded": Commonwealth of Australia v Gretton [2008] NSWCA 117 at [81].
12. Absent submissions showing authority compelling the contrary, and consistent with the requirement of adequate time to consider the offer, any special costs orders made when an offer in a Calderbank letter is taken into account ought logically to date from the expiry of the offer period, or from the date of the offer being rejected if that occurs within the offer period, rather than from the date of the offer itself; nevertheless, the date of the offer itself seems often to be used. In the present proceedings, both offers had a compressed period resulting from their being made the day before final hearing.
13. The formal offer of compromise process within some Court rules expressly provides the costs consequences of accepting or rejecting the substantive relief amount offered.
14. Unlike the general position in the formal offer of compromise rules, the Calderbank offer process does permit consideration of the reasonableness of costs-inclusive offers and offers which specify an amount for the substantive relief and an amount for costs. The inclusion of costs within the amount offered will be an element in the overall assessment, for the purposes of a special costs order, of whether it was unreasonable or otherwise to reject the offer: Elite Protective Personnel PL v Salmon [2007] NSWCA 322 at [136]- [150].
15. The offeree will need to calculate or at least estimate (with the assistance of its legal representatives) its costs incurred at time of offer. This is to know the net amount of substantive relief out of the global amount offered that the offeree will effectively receive where it is being offered a payment (or activity that can be valued monetarily). If the offer is that the offeree pay money (or provide activity that can be valued monetarily) then the offeree needs to know the costs that it has incurred to that point, so that it knows what accepting the offer will cost it. It should also estimate (with the assistance of its legal representatives) what amount of its costs it is likely to recoup under a costs order if it succeeds in the litigation. These matters are in order to decide whether or not to accept the offer, taking also into account the other factors already mentioned such as prospects. The information to make that calculation or estimation will be within the offeree's knowledge or control (usually via the offeree's legal representatives): Elite at [143] and [144]:

"[143] If a party in receipt of an offer wishes to know how far the sum offered will go in meeting its costs up to that time, all it has to do is ask its lawyers. In an age where lawyers are required to provide advance estimates of their fees and in circumstances where commercial services are billed on a monthly basis, it is unrealistic to suggest that the recipient of an inclusive offer will be confused or otherwise unable to assess the financial risk of proceeding with litigation. In any event, the offeree is likely to be liable for legal fees exceeding the costs recoverable from the other party. Most litigants, in considering offers, will want to know from their own lawyers, how much they will receive in the hand.

[144] ... Such an inclusive offer will not cause the plaintiff embarrassment: its value will be that amount remaining to him or her after deducting costs already incurred, which the plaintiff's lawyer should be readily able to quantify."

1. Information about an offeree's costs, able to be ascertained from the offeree's lawyers (including likely outcome on a costs assessment if successful in the proceedings), is centrally relevant to what is the focus of a later costs ruling in respect of the effect of the Calderbank offer, namely, the assessment whether the rejection of the offer was unreasonable at the time of offer. A determination whether rejection was unreasonable does not require resolution of the amount of costs at time of offer by a formal process (such as having costs as at that point assessed): Elite at [142]-[145], [148], [150].
2. While it is sometimes suggested that a plaintiff can act reasonably in refusing an offer at an early stage in proceedings, before evidence (especially expert evidence) and interlocutory preparation processes have given the basis for a real appreciation of prospects on liability and amount, as said in Elite at [146] and [147]:

"[146] ... it does not follow that where the plaintiff is uncertain as to the likely outcome, he or she can reject an offer without being at risk as to costs if the offer proves fair and reasonable. ... Accordingly, the fact that a defendant's offer is made early in the proceedings should not by itself be given significant weight in assessing the reasonableness of the plaintiff in rejecting it. Nor should significant weight usually be given to what the plaintiff did or did not know at that stage. Were it otherwise, the more complex the litigation the less likely that the rejection of an early offer which proves to have been fair and reasonable, will have costs consequences. That tendency would diminish rather than enhance the purpose to be discerned from the Calderbank offers and court rules.

[147] Greater sympathy may be accorded to a defendant who receives an offer early in proceedings where there has been no reasonable opportunity for it to assess its questions of liability or its likely exposure in damages. Such matters must be assessed on a case by case basis. Usually litigation will not be the first that the defendant hears of the claim. However, a defendant which receives an offer of settlement in circumstances where it reasonably requires more time to consider its position would no doubt be advised to respond to that effect and, if necessary, make a counter-offer in due course."

1. Section 104 of the Strata Schemes Management Act 2015 (NSW) (SSMA) provides as follows:

Restrictions on payment of expenses incurred in Tribunal proceedings

104 Restrictions on payment of expenses incurred in Tribunal proceedings

(1) An owners corporation cannot, in respect of its costs and expenses in proceedings brought by or against it for an order by the Tribunal, levy a contribution on another party who is successful in the proceedings.

(2) An owners corporation that is unsuccessful in proceedings brought by or against it for an order by the Tribunal cannot pay any part of its costs and expenses in the proceedings from its administrative fund or capital works fund, but may make a levy for the purpose.

(3) In this section, a reference to proceedings includes a reference to proceedings on appeal from the Tribunal.

1. SSMA s 232 relevantly provides as follows:

232 Orders to settle disputes or rectify complaints

(1) Orders relating to complaints and disputes The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following -

(a) the operation, administration or management of a strata scheme under this Act,

(b) an agreement authorised or required to be entered into under this Act,

(c) an agreement appointing a strata managing agent or a building manager,

(d) an agreement between the owners corporation and an owner, mortgagee or covenant chargee of a lot in a strata scheme that relates to the scheme or a matter arising under the scheme,

(e) an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme,

(f) an exercise of, or failure to exercise, a function conferred or imposed on an owners corporation under any other Act.

1. For strata schemes, there are some special legislative provisions which interact with the foregoing, as relevantly determined by the Appeal Panel in Owners SP 74698 v Jacinta Investments PL [2021] NSWCATAP 387 at [180]- [208].
2. First, SSMA s 232 supports the making of an order quarantining lot owners against contributions (from the existing funds of an owners corporation or from levies) to pay damages and costs orders against the owners corporation in favour of the lot owners.
3. Secondly, SSMA s 104 operates of its own force, without need for orders, to quarantine successful lot owners from contributing (from the existing funds of an owners corporation or from levies) to the owners corporation's costs and expenses in the proceedings.
4. Thirdly, it is appropriate, if there is a separate determination on costs and expenses in the proceedings, to reserve for that determination any dispute as to the operation of SSMA s 104 in terms of whether the lot owner is successful in the proceedings and the owners corporation unsuccessful in the proceedings, even if that appears reasonably clear.
5. What is not the subject of such quarantining is expenditure from existing funds or from levies to fund remedial work to common property.
6. Since SSMA s 104 operates as a statutory obligation without need for an order once the lot owner is established as the successful party, a notation of that statutory force is sufficient without further order.

1. As the applicant's costs submissions analysed, the amount of $6,092 payable under the consent orders of 11 September 2025 in the present proceedings equated to the minimum that the applicant would have obtained as recoupment of levies for OC costs of the earlier proceedings (as the successful party in the earlier proceedings and under the orders in those proceedings as construed) had the present matter proceeded to a contest on the amount. It was the minimum, as appeared from the OC's submissions, because after receipt of the summonsed production the contest narrowed to certain expenses which the applicant initially continued to claim but, after explanation from the OC, did not press in the final consent orders.
2. Accordingly, in the present proceedings the applicant was completely successful on the contested separate questions and achieved in the consent orders the minimum that he would have achieved in pursuing the remaining issues. This outcome required his bringing the proceedings, even though he received much less than he originally claimed before sighting and having explained the records obtained in the proceedings. The amount was not offered by the OC prior to 18 August 2025 and then only with the added requirement of no order as to costs. The ability to contest costs but receive the principal amount occurred only shortly before 11 September 2025.
3. The consent orders as made effectively acknowledged the applicant as the successful party in the present proceedings, which is a statutory ingredient of s 104 and in any event I find to be obviously correct. Whether the applicant's successor in title as lot owner can take the benefit of s 104 and escape being levied for the OC's costs and expenses of the present proceedings, including any adverse costs order against the OC, is not necessary to consider or answer since the present lot owner did not seek to be a party to the present proceedings.
4. The basis for what the applicant obtained under the 11 September 2025 consent orders, and the prior debate that reached that figure, had the means of becoming clear to the applicant only after the OC produced, in response to the summons issued at the request of the applicant, the substantiating documents dissecting its costs and expenses of the earlier proceedings. That production finally occurred on 30 April 2025 while the decision on the separate questions was reserved.
5. The basis for the consent outcome should have been obvious to the OC, acting rationally and as custodian of the documents, from the outset of the proceedings, if it produced the documents that it belatedly produced.
6. Why the OC resisted production of the documents, requiring a summons, and then contested production under the summons, was not fully explained. The OC did not point to any specific provision requiring conduct money for a summons for production of documents, particularly a summons addressed to a party, as it claimed was a reason. In any event a summons can be answered by timely lodgement of documents: r 34(6) of the NCAT Rules.
7. The OC said that the applicant could have effectively avoided or shortened the proceedings by exercising his rights under SSMA s 182 to inspect the OC financial records. There is insufficient evidence to determine whether such inspection would have resolved all questions of characterisation and analysis from the face of the documents able to be inspected.
8. In any event, the applicant had only the knowledge that he had been levied the same as other lot owners, that the costs of the preceding litigation in which he had succeeded were, by clear inference, larger than the $3,000 credit he had received and that the financial statements received by lot owners from the OC were not specific as to dissection of costs and expenses relating to the previous proceedings. The applicant had succeeded in those proceedings and it was the statutory obligation of the OC not to charge to him its costs and expenses of those proceedings. On the face of the information that the applicant had, unless he expended time and money in searching records under SSMA s 182 that may or may not produce a clear conclusion without further explanation, it appeared that the statutory obligation had not been fulfilled. The OC had within its possession, knowledge and control the means at all times, to dissect and characterise the documented information and substantiate that it had complied with its statutory obligation, whether or not the applicant exercised rights of inspection under s 182.
9. When the applicant commenced proceedings, the OC's duty of co-operation under s 36 of the NCAT Act coupled with its forensic interest was to produce information within its possession, knowledge and control able to counter or modify the inference from the documents that the applicant had. That did not promptly occur. There is no basis in rationality for that way of conducting the proceedings. If the documents had been made available prior to the hearing on 21 February 2025, then the only issues in contest in the proceedings were likely to have been those in the separate questions, on a rational assessment.
10. I therefore accept that costs of the proceedings, other than the reserved costs of the separate questions determination, should be the subject of a costs order if there are special circumstances established that permit the exercise of discretion on costs under s 60 of the NCAT Act. The facts just recited show that each of the exceptions described above in Lai Quin apply. The outcome on those issues was inevitable once the separate questions were determined against the OC's contentions, as they were, and should have been resolved without contest at the outset, subject only to determination of the separate questions. Prolonging the proceedings in that respect, including in respect of producing the relevant documents, compounded the conduct justifying the award of costs, as did the belated capitulation to consent orders. In any event, it is arguable that the Lai Quin exceptions do not need to be invoked because the principle does not apply where part of the proceedings were resolved by contest.
11. The same facts also constitute special circumstances within s 60(3)(a), (b) and (f) of the NCAT Act. The OC's conduct of the proceedings disadvantaged the applicant and prolonged the litigation, when compliance with the duty of co-operation on parties and their representatives in s 36 of the NCAT Act required otherwise. On what the OC ought to have known from its own records, the amount to which the applicant was entitled by way of relief in terms of refunded levies was ascertainable and its characterisation able to be analysed and explained to the applicant. There ought to have been an early disclosure and ready agreement which would have been subject to determination of the two issues genuinely in dispute.
12. The OC had an arguable basis to contest the separate question issues. The jurisdictional question was a matter of principle, public interest and legal complexity and the interpretation question also contained some complexity. Those matters form the basis, within s 60(3)(d) of the NCAT Act, for a finding of special circumstances and a justification of the exercise of costs discretion in favour of an award of costs to the applicant on the ordinary basis in respect of the contested separate question issues, on which it succeeded.
13. The remaining issue is the effect of the Calderbank offers on 20 February 2025. I put to one side the OC's offer except to comment that the unwarrantedly inflammatory language in which parts of it were phrased could itself be argued to support a claim for exercise of discretion to award costs. Some examples suffice: "As your client is no doubt aware, your client's case is completely incompetent and doomed to fail"; "your client knowingly sought to double dip for costs and expenses"; "Given your client's application is hopeless, doomed to fail and quite frankly brought in bad faith".
14. Turning to the applicant's Calderbank offer, the principal amount offered of $4,500 was proportionally significantly less (by about 25%) than the amount ultimately agreed of $6,092 and at a time when the applicant did not have access to the summonsed production but the OC, as offeree and payer if it accepted the offer, did. It was made at a time when both parties, legally represented, ought to have been fully prepared and cognisant of prospects and risks. It was a genuine compromise of the applicant's claim. In the circumstances of an imminent hearing (set for half a day from 1.15pm when the offer expired at 10am the same day) it was open for and required a rapid acceptance or non-acceptance by informed parties (as would have the OC's offer which expired an hour earlier than the applicant's offer). It would have ended the proceedings with a compromise that avoided the need to determine any further issues, including the separate questions.
15. The applicant's offer, inclusive of costs, totalled $8,900 including $4,400 for costs. The total was only $2,808 higher than the principal amount of $6,092 that the applicant achieved by the consent orders determining the proceedings. A rational assessment by the OC, assisted by its legal representatives and by its own costs claimed of $20,400, would have been that the applicant's costs were greater than $4,000 at that point immediately prior to final hearing and given the preparation to date, and that the applicant, if successful, would achieve on assessment a larger amount for costs which when aggregated with the principal likely to be achieved would be significantly proportionately greater than the amount that the OC would have to pay if it accepted the offer.
16. Costs are the appropriate basis for determining consequences of the conduct of the proceedings, not summary applications under para 10(2) in Sch 4 to the NCAT Act as the OC raised in its submissions.
17. The applicant is accordingly entitled to his costs of the proceedings on an indemnity basis from after 10am on 21 February 2025.

(1) Order that the respondent pay the applicant's costs of the proceedings on the ordinary basis as agreed or assessed up to 10am on 21 February 2025 and on the indemnity basis after 10am on 21 February 2025.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.