Gokani-Robins Pty Ltd v The Owners – Strata Plan No 77109 (No 2)

(1) the appellants' application for costs is dismissed.

(2) the respondent's application for costs is granted.

1. These reasons assume a knowledge of the Appeal Decision.

1. As we noted in the Appeal Decision at [198] the parties had agreed at the conclusion of the hearing of the appeal that questions of costs could be determined without a further hearing. Neither party subsequently submitted that a hearing on questions of costs was necessary. As we are satisfied that the issue of costs can be adequately determined in the absence of the parties by considering their written submissions, we dispense with a hearing on questions of costs pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

(1) the respondent on 29 May 2025;

(2) the appellant on 17 June 2025 (late);

(3) the respondent in reply on 23 June 2025.

1. In summary, the respondent submits that, given the complete failure of the appellant on all their grounds of appeal, there are special circumstances warranting an award of costs pursuant to s 60 of the NCAT Act.
2. The respondent submits that special circumstances exist because:

(1) the appeal lacked substance and was manifestly weak;

(2) the appellants advanced unnecessarily voluminous, repetitive and obscure grounds of appeal and submissions, which unnecessarily increased the time and costs required to respond to the appeal;

(3) the procedural manner in which the appellants conducted the appeal disadvantaged the respondent, including by reason of a misconceived (and subsequently dismissed) stay application, notices of appeal which failed properly to identify errors of law, and failure to comply with the Appeal Panel's directions.

1. The appellants also seek their costs, such costs to be paid on the indemnity basis. They say that the respondent has unfairly denied them the opportunity for their case to be heard, and fundamentally misrepresented to the Appeal Panel the matters to be considered.
2. In this regard, the appellants sought to rely upon further evidence, being an extract from a title search for the respondent, undertaken on 13 June 2025, which the appellants assert discloses that the amendments to Special By-Law 16 (SBL 16) which were passed on 3 November 2023 had never been registered. If that is correct, then pursuant to s 141(2) of the Strata Schemes Management Act 2015 (NSW) the amendments to SBL 16 have not taken effect. Section 141(3) requires an owners corporation to lodge a notice of a change to the bylaws within six months of the day the special resolution is passed.
3. In summary, the appellants submit:

(1) the proceedings were commenced in good faith by the appellants, both at first instance and on appeal. The proceedings were not pursued vexatiously but in response to a preference for clarity by "the Court" (which we understand to be a reference to the Local Court) regarding the validity of a by-law being relied upon by the respondent;

(2) the respondent sought to deny the appellants the opportunity to have Special By-Law 16 in its original (unamended) form considered by the Tribunal and Appeal Panel on six occasions;

(3) the respondent ought not to have opposed its sixth ground of appeal, which was the appellants' "leading ground". The appellants' submissions in this respect are founded upon the fact, asserted by the appellants on the basis of the further evidence referred to above, that the amendments to SBL 16 had not been registered at the time of the appeal hearing.

1. In response to the respondent's submissions, by way of introduction, the appellants submit that nothing identified by the respondent gives rise to special circumstances warranting an order for costs against the appellants.
2. The appellants further submit (footnotes omitted):

16 The making of a costs order under s 60(2) of the NCAT Act is a two-stage process. The Respondent has made submissions in relation to the first stage that special circumstances exist. The Appellants oppose that position as detailed below. However, the Respondent has made no submissions at all in relation to the second stage that those circumstances are sufficient to enliven the discretion of the Panel and justify it departing from the general rule that each party bear their own costs. Accordingly, the position of the Respondent itself falls short of what is required ought fail as a result.

1. In relation to the appeal lacking substance and being manifestly weak, the appellants submit, amongst other matters, that the proceedings were not misconceived, vexatious or otherwise lacking in substance and it cannot be said the appeal had no tenable basis in fact or law.
2. In relation to the respondent's submission that the appellants advanced unnecessarily voluminous, repetitive and obscure grounds of appeal and submissions, the appellants submit, amongst other matters, that their submissions were organised and "sign-posted", so as to ensure that a review of their submissions was not overly burdensome. Further, where possible, the appellants say they sought to make submissions in summary form including with a "Schedule table". They submit that the manner in which they presented their documentation assisted the Appeal Panel to complete a consideration of the documentation in the half-day allocated for the hearing of the appeal.
3. In relation to the manner in which they conducted the appeal disadvantaging the respondent, the appellants deny this claim. They submit, amongst other matters, that:

(1) the respondent has patently misrepresented their position in relation to the stay application;

(2) no evidence was provided that their conduct caused inefficiency, and wasted and unnecessary costs;

(3) there is nothing out of the ordinary about parties to an appeal referring to submissions made in the proceedings at first instance or repeating those submissions where, on appeal, they contend the submissions were correct and/or the original decision maker was in error.

1. In brief submissions in reply, the respondent submits that the appellants' application for costs is without foundation and must be dismissed. The respondent submits that:

(1) the appellants' submissions are misconceived.

(2) the appellants' submissions concerning the registration of the amendments to SBL 16 raised a new argument, which formed no part of the appeal, and sought to adduce further evidence in support of it, after the Appeal Panel had made its decision;

(3) the appellants' submissions mischaracterise the procedural history of the matter, and are also irrelevant;

(4) the suggestion of impropriety on the respondent's part is denied in the strongest terms, and should not have been made;

(5) the authorities cited by the appellants, purportedly in support of their position, do not stand for any proposition relevant to the appellants' submissions.

1. The following issues fall to be determined. Our summary determination appears in italics.

(1) what is the relevant costs rule? The relevant costs rule is found in s 60 of the NCAT Act.

(2) are the appellants entitled to their costs? No.

(3) if so, are they entitled to costs on the indemnity basis? Does not arise.

(4) has the respondent established special circumstances? Yes.

(5) if so, should the Appeal Panel make an order for costs in the exercise of its discretion? Yes.

1. The respondent correctly submits that the relevant costs rule is found in s 60 of the NCAT Act. Section 60 relevantly provides:

60 Costs

(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.

1. The Appeal Panel of the Tribunal has considered on many occasions the applicable principles as to whether there are "special circumstances" to justify a costs order in favour of a party: see for instance The Owners-Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 at [6]- [15] and Grasso v The Owners Strata Plan No 52399 [2022] NSWCATAP 91 at [12]. To paraphrase B & G Trading Pty Ltd:

(1) "special circumstances" means circumstances that are out of the ordinary but not to the degree of being exceptional or extraordinary;

(2) a costs order is not made simply because one or more of the circumstances in s 60(3) is established. The special circumstances must be sufficient for the Tribunal to exercise its discretion in favour of making a costs order;

(3) the party seeking costs bears the onus of persuading the Tribunal that the special circumstances are sufficient to justify departing from the usual principle in s 60(1);

(4) the discretion should be exercised judicially, with consideration that the usual principle is that by reason of s 60(1) each party bears its own costs, and the Tribunal must be persuaded to depart from that principle;

(5) whether there are sufficient special circumstances to justify a costs order is a question of fact and each case must be assessed according to its circumstances.

1. The simple answer is no; we see no basis whatsoever why the appellants, the unsuccessful parties, should be entitled to their costs, let alone on the indemnity basis. This is for the following reasons.
2. First, the appellants were the unsuccessful parties. While it is not completely beyond the realms of possibility that an unsuccessful party might be awarded costs (such as where there been mixed success in the outcome of an appeal), we find no reason in this instance justifying the respondent being ordered to pay the appellants' costs.
3. In any event, the appellants have made no attempt to address the matters set out in s 60 of the NCAT Act. That is to say, they have not established why there are special circumstances warranting an award of costs in their favour.
4. Secondly, as submitted by the respondent, the appeal did lack substance and was manifestly weak: see [31] - [42] below.
5. Thirdly, as submitted by the respondent, the appellants advanced voluminous, repetitive and obscure grounds of appeal and submissions, which unnecessarily increased the time and costs required to respond to the appeal. A reading of the Appeal Decision demonstrates this point.
6. Insofar as the appellants have sought to rely upon the asserted fact that the amendments to SBL 16 have not been registered, we agree with the respondent that, in raising that issue, the appellants are seeking to impugn the decision at first instance on a basis not raised at the hearing of the appeal.
7. Even if the appellant's assertions concerning the failure to register the amendments are correct, and even assuming that the failure to register the amendments might have been a separate ground for appeal or support for other grounds of appeal (in respect of which questions we make no comment), the time for the appellants to raise that issue was before the determination of the appeal. We do not consider that the appellants' submissions concerning the alleged failure to register the amendments to SBL 16 should be taken into account in considering our decision in respect of the costs of the appeal.

If so, are they entitled to costs on the indemnity basis?

1. Given our determination of the previous issue, it is not necessary to decide this issue.

Has the respondent established special circumstances?

1. As noted above, the first reason the respondent seeks its costs is because the appeal lacked substance and was manifestly weak: NCAT Act, s 60(3)(c) and (e). The respondent submits that this is a sufficient reason to establish special circumstances and refers to the Appeal Panel decision in The Owners Strata Plan No 79633 v Graorovska (No 2) [2022] NSWCATAP 245 at [20]- [25].
2. Although the appellants appeal did not involve the making of serious allegations of ethical breaches against the Tribunal member or the respondent's legal representatives, as occurred in Graorovska, we are satisfied that the appeal was so weak and lacking in substance as to constitute special circumstances.
3. In James v Department of Justice (Corrective Services NSW) (No 2) [2022] NSWCATAP 216, the Appeal Panel held, at [13]-[14] and [24]-[26]:

"13 The respondent's submissions in this regard amounted, ultimately, to no more than the proposition that, the appeal having failed, it was thereby shown to have no tenable basis.

14 Section 60 (3) (c) requires more than this. As the Appeal Panel held in DYH v Public Guardian (No 3) [2022] NSWCATAP 34 at [17] - [19]:

17 The power to award costs in s 60 of the NCAT Act is to be understood in the context of the Act as a whole. One of the objects of the NCAT Act is "to ensure that the Tribunal is accessible and responsive to the needs of all of its users" (NCAT Act, s 3). A large proportion of its users are not legally trained and the general rule (which is modified for the Administrative and Equal Opportunity Division) is that a party has the carriage of the party's own case and is not entitled to be represented by any person, unless the Tribunal grants leave (NCAT Act, s 45(1); Sch 3, cl 9). The Tribunal is also obliged to ensure that the parties understand the nature of the proceedings and, if requested to do so, explain procedural matters to the parties (NCAT Act, s 38(5)).

18 The general rule set out in s 60(1) of the NCAT Act, that each party pay the party's own costs, was "designed to promote access to justice generally and to minimise the overall level of costs in tribunal proceedings as far as is practicable" (Choi v University of Technology Sydney [2020] NSWCATAP 18 at [41], citing Stonnington City Council v Blue Emporium Pty Ltd [2004] VCAT 1441 at [13]). The concern with access to justice, evinced in s 60(1), indicates that the Tribunal should not award costs too readily on the basis that one party's claim was stronger than the other party's claim (see NCAT Act, s 60(3)(c)). The relative strengths of the parties' claims is one factor to be taken into account, but a finding that a party's claim is weak does not necessarily mean that there are special circumstances warranting an award of costs (see Choi v University of Technology Sydney [2020] NSWCATAP 18 at [45]).

19 In this context, we consider that the power to award costs is to be exercised with some tolerance for self-represented litigants who do not understand legal concepts. That includes a lack of understanding of the rules governing the admission of fresh evidence and the question of what constitutes error for the purposes of an appeal. That approach is consistent with the principle that the discretion to award costs is to be exercised judicially "having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs" (Feng v OzWood (Australia) Pty Ltd [2020] NSWCATAP 42 at [8]).

...

24 In Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135 at [44] the Appeal Panel held that:

44 A finding that a claim is "not proved on the balance of probabilities" is not the same as a finding that a claim is "not tenable in fact or law". They are different concepts. The expression "no tenable basis in fact or law" relates to the common law tests developed and applied in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125. For a claim to have no tenable basis in fact or law it must be so obviously untenable that it cannot possibly succeed: General Steel at 130. "Manifestly groundless" or "clearly untenable" are equivalent expressions. In our view, for the purpose of s 60(3)(c), it matters not whether a conclusion that a claim has no tenable basis in fact or law is reached in connection with an application for summary dismissal or after a full hearing on the merits.

25 In that case, at [50], the Appeal Panel adopted the statement of Ipp JA in The Owners Corporation of Strata Plan 4521 v Zouk & Anor [2007] NSWCA 231 at [45] that "lacking in substance" means "'not reasonably arguable'. That is, a meaning not dissimilar to 'frivolous, vexatious, misconceived'".

26 We do not consider that the appeal could properly be described as frivolous, vexatious, misconceived or lacking in substance in the sense outlined by the Appeal Panel in Zucker v Burbank Montague Pty Ltd. The grounds of appeal were not established, and it may fairly be said that the appeal had weak prospects of success. However, as the Appeal Panel stated in DYH v Public Guardian (No 3) [2022] NSWCATAP 34, at [18], the concern with access to justice evinced in s 60 (1) indicates that the Tribunal should not award costs too readily on the basis that one party's claim was stronger than the other party's claim, and a finding that a party's claim is weak does not necessarily mean that there are special circumstances warranting an award of costs."

1. In this case, the appellants were represented by a solicitor and, consequently, do not receive the "tolerance for self-represented litigants who do not understand legal concepts" referred to in DYH v Public Guardian (No 3) [2022] NSWCATAP 34 at [19].
2. Although the appellants' submissions suggest that the Appeal Decision "involved new law" and that "there was no precedent on these matters", we do not agree. We do not consider that there was any question raised by the appeal which was not answered by the application of uncontested legal principles. To the extent that the appellants' submissions propounded principles for the interpretation of strata scheme by-laws which were rejected in the Appeal Decision, the appellants' submissions were clearly inconsistent with binding authority: see the Appeal Decision at [129]-[141].
3. It is to be recalled that there were six grounds of appeal. We will summarise them in the same order they were dealt with in the Appeal Decision.
4. As to the sixth ground, (namely whether the Tribunal identified the wrong issue or asked the wrong question), we accepted that the appellants raised a question of law, but we saw no error on this question of law.
5. As to the fifth ground of appeal (namely that the Tribunal erred by failing to take into account relevant considerations, precedent, submissions and/or evidence (often unchallenged)), we reached a conclusion similar to our decision in relation to the sixth ground. We gave the appellants the benefit of the doubt that they raised a question of law, but we saw no error by the Tribunal on this question of law.
6. As to the fourth ground (namely that the Tribunal erred by applying a wrong principle of law), for the reasons given in the Appeal Decision, we found this ground could not be sustained.
7. As to the third ground of appeal (namely whether the Tribunal erred by failing to provide proper reasons), we accepted that this ground raised a question of law, but we discerned no error.
8. As to the second ground of appeal (whether the Tribunal erred in its construction of SBL 16 (as amended)), we concluded:

167 ... we do not consider that the Tribunal adopted an erroneous interpretation of SBL 16(6.4).

168 The appellants' submissions concerning other paragraphs of the Primary Decision follow a similar pattern of raising trivial and irrelevant issues and seeking to re-argue the merits of the case rather than identifying any respect in which the Tribunal has misunderstood or misconstrued individual clauses of SBL 16. It is not necessary to canvass those submissions at length. We do not accept them.

169 Ground 2 must be rejected.

(emphasis added)

1. The first ground of appeal was stated as "Did the Tribunal err in finding that ... SBL 16 was not "harsh, oppressive or unconscionable". We concluded:

185 We see nothing of any substance in the appellants' submissions, which are confusing, incoherent, circular and argumentative. They fundamentally fail to acknowledge or comprehend the objective of SBL 16 and the importance given to fire safety systems by the SSMA (eg, ss 109(5)(d) and 123) and the Model by-laws for residential strata schemes in Sch 3 to the Strata Schemes Management Regulation 2016 (NSW).

186 The overreach or exaggeration of the submissions is amply demonstrated by noting that the effect of the appellants' submissions is that in 89 of the 173 paragraphs of the Primary Decision the Tribunal made a decision that was so unreasonable that no reasonable decision maker would make it.

187 Ground 1 must be rejected.

(emphasis added)

1. Our overall conclusion was that it was difficult to escape the impression that, with each of the grounds of appeal, the appellants were attempting to run their case again (Appeal Decision, at [188]), which is impermissible: Noori v JMG Auto Parts Pty Ltd [2022] NSWCATAP 250 at [74]- [75].
2. Finally, we consider that there is substance in the respondent's submission that the appellants advanced voluminous, repetitive, obscure (and, we would add, in many instances incoherent) grounds of appeal and submissions, which unnecessarily increased the time and costs required to respond to the appeal. A reading of the Appeal Decision demonstrates this point. In this sense, the appellants unnecessarily disadvantaged the respondent.
3. If follows that we are satisfied the respondent has established special circumstances entitling them to seek a costs order.
4. It is not necessary to consider whether the procedural manner in which the appellants conducted the appeal, that is in filing a stay application, filing a notice of appeal insufficiently specifying any errors of law (or questions of law), and allegedly not complying with directions, also disadvantaged the respondent. Any disadvantage arising in relation to those matters was, in our view, minimal.

If so, should the Appeal Panel make an order for costs in the exercise of its discretion

1. That leaves for determination whether, in the exercise of our discretion, we should order the appellants to pay the respondent's costs.
2. In Brodyn Pty Ltd v Owners Corporation - Strata Plan 73019 (No 2) [2016] NSWCATAP 224, at [24] and [26], the Appeal Panel stated:

"24 ... [W]here special circumstances are found to exist, the Tribunal has a discretion to exercise in deciding what, if any, order should be made. Relevant to the exercise of that discretion are those facts upon which the finding of special circumstances was based. However, those findings do not constitute the whole of the relevant matters to be considered in deciding what, if any, order for costs should be made. Rather, the principles applicable to awarding costs generally must also be taken into account. These include:

(2) That an unsuccessful party bears the costs of the successful party: ...

...

26 Overall, the Tribunal is to exercise its discretion in a manner that is fair and reasonable having regard to the circumstances of the particular case. [Citations omitted]"

1. We also note that the discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94.
2. Having found that special circumstances are established and given the lack of merit in the appeal and the unwarranted volume of material to which the respondent was required to respond we consider that it is appropriate that the appellants pay the respondent's costs of the appeal.

(1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing on costs is dispensed with.

(2) The appellants are to pay the respondent's costs of the appeal as agreed or as assessed in accordance with the applicable costs legislation.

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

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.