Gabriela v The Owners – Strata Plan No. 52108 (No 2)

1. The salient points in the Decision were that the appellant raised four grounds of appeal. The first two grounds alleged that she did not receive the evidence and information the respondent relied on before the Tribunal at first instance. The Appeal Panel accepted the respondent's evidence which included postal records that the documents were posted to the appellant at her nominated address. The third ground referred to an unrelated dispute the appellant has with the respondent and the fourth ground of appeal incorrectly asserted that the respondent's application for Access Orders had been dismissed on many occasions.
2. The Appeal Panel in dismissing the appeal, observed that the appellant's conduct in this Tribunal has caused the payment of higher insurance costs that has been borne by all other owners as the Strata Plan has been unable to comply with the Fire Safety Order: para 33 of the Decision.

Section 60(3)(a)-(g) of the Civil and Administrative Tribunal Act

1. Section 60 of the Civil and Administrative Tribunal Act states_:_

(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,

(d) the nature and complexity of the proceedings,

(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. The respondent relies on ss 60(3)(a), (c), (e) and (f).

Failure to comply with orders made by the Tribunal and with the respondent

1. The respondent points to the following matters: the appellant failed to serve documents on the respondent when she filed them in the Tribunal; the appellant failed to file any evidence or submissions in support of the appeal application and the appellant filed an unnecessary duplicate application in a different jurisdiction.

1. The respondent submitted that the appellant failed to provide any justification or explanation for the Notice of Appeal. No grounds of appeal were alleged. The respondent submitted that the appellant's claim that she did not receive the documents was false as she had received and responded to other documents sent by the respondent to the same post box and email.

1. The respondent relied on the previous costs orders made against the appellant in earlier proceedings by the Tribunal.
2. During the Renewal Access Proceedings it was stated by SM Vrabac:

I note that the applicant was awarded costs in the original matter by Mr Moran and in the set aside matter by Mr Titterton...

The proceedings were made unnecessarily complex by having to argue before Mr Moran and Mr Titterton in the original application and the set aside, which were clearly defeated without any opportunity being given to the applicant to have a second go at the - the respondent to have a second go at this. I don't have to go to section 63(e) whether the proceedings were frivolous or vexatious, but (f) which states that whether the party has refused or failed to comply with the duty imposed by section 36(iii), that certainly in this matter, the lot owner of 106 is way out of being just quick and cheap. The opposite is true. Every step has been taken to - not to act in accordance of the mandate of section 36(3).

1. The respondent submitted that the appeal was a continuation of the appellant's conduct of delay and obfuscation, that she conflated matters which hindered the Access Orders being made and that the appeal was baseless but was made so as to hamper the respondent's responsibilities which require access to her lot. The respondent submitted that this was an abuse of process.

Compliance with s 36(3) of the Civil and Administrative Tribunal Act

1. The respondent submitted that the appellant's conduct of the proceedings has been antithetical to the "just, cheap and quick real resolution of the real issues in the proceedings" and unreasonably prolonged the time taken to comply with the Renewal Access Orders.
2. The respondent placed particular importance on the fact that the Access Orders were required to comply with orders made by Council Fire Safety Order, to deal with safety concerns of all owners and occupiers of the building.

1. The respondent seeks costs from the date the appellant was notified of the first order made by this Tribunal on 3 May 2024. The appellant filed a stay of the orders and an appeal on 13 May 2024. On 14 May 2024 orders were made for the case management of the applications. Inter alia the following orders were made:

In respect of the decision made on 16 April 24 in matter number 2023/00366459 the operation of orders 10.1 and 10.2 is stayed until 5:00 PM on 29 May 2024 or finalisation of the appeal, whichever is the earlier in time.

The preceding order is conditional upon The Owners - Strata Plan No 52108 (Respondent) having liberty to seek any costs thrown away through the rescheduling of tradespeople if the appellants do not voluntarily allow access to the lot for the works that have been scheduled today.

For the appellants' benefit this means that whilst they can refuse access to the lot today, they risk an order that they pay for any expenses incurred by them doing so if the Tribunal decides that is warranted at the hearing on 29 May 2024.

1. The Owners Corporation had arranged tradespeople to attend on the appellant's lot that day and did not have time to prevent their attendance. The appellant refused access to the tradespeople. The respondent relied on Invoices from the tradespeople and the strata managing agency for the amount of $3 524.29.

1. The general position with respect to costs is contained in s 60(1) which provides that each party to proceedings in the Tribunal is to pay the party's own costs. However the Tribunal has power to make an award for costs "only if it is satisfied that there are special circumstances warranting an award of costs"; s 60(2). In our view in this appeal there are special circumstances warranting an award of costs by reason of the appeal lacking in substance.
2. In the context of s 60 of the Civil and Administrative Tribunal Act, special circumstances are those that are out of the ordinary, and they do not have to be extraordinary or exceptional; CEU v University of Technology Sydney [2017] NSWCA 280; Cripps v G & M Dawson [2006] NSWCA 81.
3. The respondent's request to the appellant for access since 2023 is a matter of public safety. The request was made properly in compliance with their duties under the Strata Schemes Management Act 2015. The respondent could not comply with the Access Order or the Renewal Access Order because of the applications made the appellant in this Tribunal, including the application for a stay of the decision and the notice of appeal.
4. This would have been more obvious to the appellant than is usually the case as costs orders have been made against her in this matter previously and reasons for the decision provided on three separate occasions; decision dated 8 September 2023 by SM Moran granting the Access Orders sought; decision dated 10 November 2023 by SM Titterton refusing to set aside the Access Orders and the decision of SM Vrabac on 16 April 2024 making Renewed Access Orders.
5. SM Moran at first instance determined that the appellant had no justification for denying access to the respondent: paras 54 to 60 of the Decision in the Initial Access Proceedings.
6. SM Titterton dismissed the set aside application on the grounds of it being inherently misconceived, stating as follows:

"In circumstances where the applicant failed to file any evidence in SC 23/42685, and no persuasive evidence is filed to support the set aside application, and no further evidence has been provided on which the applicant may wish to rely if GEN 23/14719 is reinstated, in my view the discretion to set aside the orders in GEN 23/14719 is not enlivened."

1. SM Vrabac reaffirmed the Access Orders, emphasising the necessity of access for public safety and compliance with the respondent's obligations.
2. In our view the appellant made claims in the appeal that had no tenable basis of fact or law as indicated in the Decision as there was no factual basis for the allegation and the complaints were not reasonably arguable: Langley v Niland & Anor [1981] 2 NSWLR 104.
3. It is out of the ordinary for a person to agitate allegations on appeal without any supporting evidence.
4. The Appeal Panel is persuaded that in this case, it is appropriate to order that the appellant pay the respondent's costs as special circumstances warranting costs have been established by the respondent pursuant to s 60(3)(e) of the Civil and Administrative Tribunal Act.

(1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) the Appeal Panel dispenses with a hearing on the question of costs.

(2) Within 28 days from the date of this order, the appellant pay the respondent's costs of and incidental to the appeal as agreed or assessed.

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.