Lewinsky v The Owners - Strata Plan No. 85312

Special circumstances warranting an award of costs within s 60(2) of the NCAT Act

1. "Special circumstances" in s 60(2) of the NCAT Act are circumstances that are out of the ordinary; they do not have to be extraordinary or exceptional circumstances: CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32].
2. In view of s 60(3)(g) the Tribunal is not confined to the existence of any one or more of the factors in s 60(3)(a) to (f) of the NCAT Act in determining whether there are special circumstances warranting an award of costs.
3. In considering whether special circumstances exist for the purposes of s 60(2) of the NCAT Act: 1. each case will depend upon on its own particular facts and circumstances: Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152 at [27]; 2. 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 at [48]; 3. mere success (or failure) of an application does not give rise to special circumstances: The Owners - Strata Plan 5319 v Price [2020] NSWCATAP 245 (Price) at [46].
4. In Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84 (Nichols) Payne JA at [25] (Meagher JA at [13] agreeing) considered the principles governing an application for costs in a case which has been resolved without a hearing on the merits: "[25] The relevant principles governing an application for costs in a case which has been resolved without a hearing on the merits were summarised by McHugh J in Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622 at 624-625; [1997] HCA 6: "In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence litigation. Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd, [6] the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of road and drainage plans. Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in The South East Queensland Electricity Board v Australian Telecommunications Commission [7] where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare. If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases." (footnotes omitted)
5. The circumstances set out in Nichols at [25] in which an award of costs is made in a case which has been resolved without a hearing on the merits may constitute special circumstances within s 60 of the NCAT Act: Price at [39]-[44].
6. In ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548 (ONE.TEL) at [6] Burchett J observed: "[6] In my opinion, it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court's discretion otherwise than by an award of costs to the successful party."
7. The principles in ONE.TEL at [6] have been applied in the Tribunal: Knox v Bollen; Bollen v Knox [2018] NSWCATAP 106 at [47].
8. In Wynne Avenue Property Pty Limited v MJHQ Pty Limited [2018] NSWCATAP 197 at [36] the Appeal Panel considered the meaning of s 60(3)(c) of the NCAT Act: "[36] The language of s 60(3)(c) of the NCAT Act was whether the claim or defence had "no tenable basis in fact or law"; not whether WAP's potential defence was "likely to succeed". Whether a defence is "likely to succeed" is a much higher threshold to cross than "no tenable basis in fact or law". In our view, by itself, mounting a defence which is not likely to succeed would not be sufficient to warrant a conclusion that there were special circumstances within the meaning of s 60(2)."

The evidence of the applicants

1. The applicants' 6 January 2021 documents and the applicants' 16 February 2021 documents include the following documents which are set out in chronological sequence: 1. the letter dated 13 August 2020 from the lawyers of Burbank and Gornoa to the Tribunal, the applicants' lawyers, and the Owners Corporation's lawyers (the 13 August 2020 letter), in which they relevantly stated: "2. The strata scheme is managed by a compulsory strata manager where it's term expires on 22 August 2020. Our client owns majority UE and opposes the extension of the CSMA. 3. My clients strongly oppose all the orders sought by the applicants in the interim and final application. Their interests will be adversely and severely affected by a decision to have the orders in the Interim and Final Applications made. This includes because: (a) The CSMA was appointed on 23 August 2018 to facilitate proposed common property works. Our client views that a lot of those works are completed; (b) More works have been raised since the orders dated 23 August 2018; (b) The CSMA has had a 24 month term in which it should have facilitated the works in accordance with the orders dated 23 August 2018. (c) Our clients have filed a summons within the Supreme Court seeking leave to appeal an appeal panel decision that if successful, may require the Tribunal to rehear the circumstances surrounding works that are subject to the orders of 23 August 2018. (d) The Supreme Court matter is listed for hearing on 17 November 2020." 1. the letter dated 21 October 2020 from the lawyers of Burbank and Gornoa to the applicants' lawyers marked "Without Prejudice Save As to Costs" (the 21 October 2020 letter) relevantly involving the carrying out of the Works with Mr Riad be appointed as a consultant engineer in addition to RHM, the non-renewal of the current appointment of GK Strata as the compulsory strata managing agent after its expiry on 26 November 2020, "and that the parties do not proceed to the appointment of compulsory manager with each party paying their own legal costs"; 2. the letter dated 29 October 2020 from the lawyers of Burbank and Gornoa to the applicants' lawyers and the lawyers of GK Strata marked "Without Prejudice Save As to Costs" (the 29 October 2020 letter) in which they agreed to discontinue the NSWSC proceedings on the basis of paying the costs of the Owners Corporation and the applicants, and agreed to settle the substantive and the interim proceedings on the following terms: "3. That an alternate compulsory manager (not GK Strata Management) is appointed to manage the completion of the works within the RHM report; 4. The owners corporation to engage Structial to complete the works as per their amended quote; 5. That each party pay their contribution of the special levy struck on 19 May 2019 within 28 days of these orders; 6. Each party pay its own costs." 1. the letter dated 10 December 2020 from the applicants' lawyers to the lawyers of Burbank and Gornoa (the 10 December 2020 letter) in which they relevantly stated: "The resolution of the dispute The orders made on 22 August 2018 remain outstanding. … … … We invite your client to consent to the orders we have sought an application for the appointment of a compulsory managing agent with no order as to costs." 1. the letter dated 11 December 2020 from the lawyers of Burbank and Gornoa to the applicants' lawyers and the Owners Corporation's lawyers (the 11 December 2020 letter), in which they responded to the 10 December 2020 letter and relevantly stated: "Thank you for confirming receipt of the documents by electronic copy. Order 7 states: "The respondents shall provide to the applicant and the Tribunal, e hard copy, any documents on which the respondents intends to reply at the hearing by 04-Dec-2020. " We have served e hard copies via a link. These documents are easily referenced as they are pdf book marked. We note that generally the Tribunal will order whether documents are to be provided in hard copy and tabulated. No such order was made. We have sent by post tabulated hard copy documents to the Tribunal. No prejudice has been caused to your client in this regard. You have confirmed you wish to cross examine the two deponents Mr Desmond Lee and Mr Cameron Gowers of Foreshew Strata Management. … The resolution of the dispute Our client denies that it has purposely frustrated the remedial works from commencing. The cause of dispute was over the amount of the special levies raised to complete remedial works. It is now agreed the contribution amount is not to be challenged further. They paid the special levy contributions for lots 3, 4 and 5 on 12 November 2020 to GK Strata Management. … Our clients only seek to have the remedial works completed as a priority and for the owners corporation to be under voluntary management. This will enable the owners corporation to attend to future defects promptly. While under compulsory management, the owners corporation continues not to repair or maintain on going common property defects." 1. the email sent on 11 December 2020 from the applicants' lawyers to the lawyers of Burbank and Gornoa in which they relevantly stated: "Frankly, if your clients were genuine in their recent change of attitude in relation to the Tribunal ordered works, they would simply agree to finish what was agreed to over two years ago by all lot owners, namely the appointment of a compulsory manager to exercise all the functions of the owners corporation to complete the necessary works until certification. The quickest way for that to take place (given that your clients now "seek" to have the works performed "as a priority") is through the appointment of a manager exercising all the functions of the owners corporation. Your clients appear to want the works completed (as do mine), but they cannot inform my clients why the same mechanism that was agreed to in 2018 cannot be reemployed now given the assumed absence of your clients' conduct to frustrate the performance of the orders in light of its recent change of heart."

The evidence of Burbank and Gornoa

1. In the 4 December 2020 Lee statement Mr Lee at [2] and [33] opposed the further appointment of a compulsory strata managing agent.
2. In the Burbank and Gornoa submissions, Burbank and Gornoa refer to the letter dated 3 November 2020 from the applicants' lawyers to their lawyers (the 3 November 2020 letter) in which the applicants rejected their offer in the 29 October 2020 letter and pressed for GK Strata Management to be compulsory manager for a term of 24 months or until certification, whichever was the earlier. While this letter has not been produced, I accept that Burbank and Gornoa have accurately described its contents.

The other evidence

1. The Tribunal file includes the letter dated 18 November 2020 from the lawyers of Burbank and Gornoa to the Tribunal and copied to the applicants' lawyers and the Owners Corporation's lawyers (the 18 November 2020 letter), in which they relevantly stated: "We are writing to you for the purposes of: * confirming that the interim orders made on 21 August 2020 by Senior Member Wilson to appoint GK Strata Management as compulsory manager expires on 23 November 2020. * request that the interim order be revoked; or * if the applicant seeks to extend and renew the interim orders dated 21 August 2020 for the reappointment of GK Strata Management that the Tribunal allow the parties to file short submissions or appear within an interim hearing to consider the significant change in circumstances which does invalidates reappointment of a compulsory strata manager. … Our client consents to the common property remedial works and has paid the special levies raised by the owners corporation. We provide the below reasons to support our above request. 1. Our clients consent to all remedial works within RHM Consultants report dated 30 November 2020 and accepts the amened quote of Structial dated 24 January 2020. This enables the owners corporation to comply with all remedial works that the Applicants seek. All lot owners, being parties to interim application SC 20 / 32508 and SC 20 / 22723 are in agreement to have common property remedial works completed as recommend by RHM Consultants and quoted by Structial. … 4. Our clients submit that they do not wish to incur further unnecessary costs associated with a compulsory strata manager and further legal fees of the owners corporation legal representatives. … 6. We confirm there is no outstanding dispute between the lot owners of the strata scheme to complete common property remedial works. 7. We submit that the owners corporation should be under a voluntary strata manager until the substantive application SC 20 / 22723 as the owners corporation can commence the common property remedials works immediately."

The submissions of the applicants

1. The applicants in the applicants' 6 January 2021 submissions make the following submissions in support of a finding that there are special circumstances within s 60(3)(a), (c), (f) and (g) of the NCAT Act under the following headings:

Capitulation - demonstrative of the relative strength of the Applicants' position 1. Burbank and Gornoa only withdrew their opposition to a further appointment of a compulsory strata managing agent on 20 November 2020. However, this change of position was wafer thin as they disagreed with such an appointment in the 11 December 2020 letter; 2. as a matter of principle, capitulation even in the absence of a hearing on the merits warrants a costs order where there is effective surrender, and rely upon the principles in ONE.TEL at [6]. There was "effective surrender" by Burbank and Gornoa who waited until the commencement of hearing to abandon their opposition to the application and to the principal orders sought;

Creating unnecessary disadvantage and beach of the duty imposed by section 36(3) 1. Burbank and Gornoa failed to comply with the 21 August 2020 orders as to the provision of evidence in hard copy. Whilst this factor alone would not justify a costs order, it exacerbated circumstances in which their prospects of resisting the appointment of a compulsory strata managing agent sought by the applicants were poor;

Other relevant matters 1. the failure of Burbank and Gornoa in the 11 December 2020 letter to accept the appointment of a compulsory strata managing agent sought by the applicants in the 10 December 2020 letter forced the applicants to brief counsel and incur hearing preparation costs. This was plainly unreasonable and must have costs consequences;

Conclusion 1. this is a clear case of a capitulation warranting a costs order, exacerbated by non-compliance with Tribunal directions and by an unreasonable refusal to accede to consent orders in advance of the hearing.

The submissions of Burbank and Gornoa

1. Burbank and Gornoa in the Burbank and Gornoa submissions make the following submissions in response to the applicants' 6 January 2021 submissions under the following headings:

Capitulation - demonstrative of the relative strength of the Applicants' position 1. the 22 December 2020 orders were very different to the orders sought by the applicants in strata schemes application in the substantive proceedings by reason that the parties: 1. agreed to the appointment of a compulsory strata managing agent for 9 months instead of 24 months; 2. were in agreement to commence the Works urgently and agreed to engage the same contractors to complete the Works; 1. the applicants knew their position was to commence the Works urgently and engage the agreed contractors as set out in the 21 October 2020 letter and the 29 October 2020 letter; 2. they paid their Special Levy contribution of $540,771.60 on 12 November 2020 to enable the Works to commence; 3. the principles in ONE.TEL at [6] can be distinguished by reason that they made settlement offers in the 21 October 2020 letter and the 29 October 2020 letter; 4. there were no further outstanding issues to decide except whether it was necessary for a compulsory strata managing agent to manage the Works; 5. there was no capitulation as both parties were in agreement with completing the Works, the engagement of the same contractors and the price to complete the Works. The primary issue outstanding was whether the Owners Corporation required a compulsory strata managing agent to manage the Works. They acted reasonably under the circumstances as they made it known to the applicants that the majority of outstanding matters were in agreement except for the appointment of GK Strata as the compulsory strata managing agent;

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 1. the applicants have not sufficiently addressed this factor;

Creating unnecessary disadvantage and beach of the duty imposed by section 36(3) 1. no prejudice was suffered by the applicants as e copies of the 3 December 2020 Gowers statement and the 4 December 2020 Lee statement were served on 4 December 2020;

Other relevant matters 1. they had a genuine concern that the current compulsory strata managing agent GK Strata had neglected common property works as they had shown lack of progress to attend to new common property defects including excessive water leaking that resulted in significant water usage costs;

Conclusion 1. the 22 December 2020 orders do not evidence capitulation or surrender but their actions "materially contribute to the points of issues that remained outstanding" between them and the applicants.

The submissions of the applicants in reply

1. The applicants in the applicants' 16 February 2021 submissions make the following submissions in reply to the Burbank and Gornoa submissions under the following headings:

Capitulation - demonstrative of the relative strength of the applicants' position 1. the contention that the majority of the 23 August 2018 orders were complied with is demonstrably false. In short, the Works had not yet started; 2. the contention that their earlier offers were "reasonable" ought not be acceded because: 1. as to settlement offer in the 21 October 2020 letter, they did not consent to the appointment of a compulsory strata managing agent and proposed the involvement of Mr Riad; 2. as to settlement offer in the 29 October 2020 letter, they did not consent to Jamesons Strata Management Eastern Suburbs Pty Limited (Jamesons); 1. they never insisted upon GK Strata being the compulsory strata managing agent;

Relative strength of claims 1. Burbank and Gornoa had opposed the entirely reasonable position of the applicants that an independent manager ought to manage the Works which were long overdue;

Creating unnecessary disadvantage 1. Burbank and Gornoa did not comply with the 21 August 2020 orders as to the provision of evidence in hard copy;

Other relevant matters 1. the contention that Burbank and Gornoa had a general concern that common property works were being neglected is inconsistent with the commencement of the SC 19/21348 proceedings, the SC 19/29191 proceedings and the SC 19/29191 proceedings;

Conclusion 1. this is a clear case of capitulation warranting a costs order, exacerbated by non-compliance with Tribunal directions and by an unreasonable refusal to accede to consent orders in advance if the hearing. The the substantive and the interim proceedings were necessitated by the refusal, and indeed vehement opposition, of Burbank and Gornoa to independent management of the long overdue Works.

Whether there are special circumstances warranting an award of costs in favour of the applicants

1. I am satisfied that Burbank and Gornoa acted unreasonably in opposing the relief sought by the applicants in the substantive and the interim proceedings for the following reasons: 1. in consenting to the 23 August 2018 orders they not only had agreed to the mechanism that led to the RHM report, but also that the Works would carried out with a compulsory strata managing agent undertaking the functions the Owners Corporation while the Works were carried out; 2. notwithstanding the terms of the 23 August 2018 orders, they, as set out in the 13 August 2020 letter, strongly opposed all the orders sought by the applicants in the substantive and the interim proceedings. This opposition to the Works being carried out was maintained until the 18 November 2020 letter; 3. the settlement offers in the 21 October 2020 letter and the 29 October 2020 letter did not include unqualified agreement by them to the carrying out of the Works, but in the former involved an attempts by them to vary the regime which they had consented to in the 23 August 2018 orders, and in both involved the applicants forgoing their right to seek a costs order in the substantive and the interim proceedings; 4. notwithstanding the terms of the 23 August 2018 orders, even after 18 November 2020 they continued to oppose the appointment of a compulsory strata managing agent as set out in the 4 December 2020 Lee statement and the 11 December 2020 letter; 5. it was only at an unknown time after 11 December 2020 that they agreed to the appointment of Jamesons which was one of the alternative strata managing agents named in the strata schemes application in the substantive proceedings.
2. Additionally, for the reasons set out in paragraph [67] above, Burbank and Gornoa effectively surrendered to the applicants in agreeing to the 22 December 2020 orders. The difference in the length of the term of the compulsory strata managing agent between the orders sought in the strata schemes application in the substantive proceedings and the 22 December 2020 orders was immaterial. In each instance the appointment of the compulsory strata managing agent would cease on the certification of the completion of the Works. There was no supervening event which explains the change of position of Burbank and Gornoa to agree firstly on 18 November 2020 to the carrying out of the Works, and secondly at an unknown time after 11 December 2020 to the appointment of a compulsory strata managing agent. The settlement offers in the 21 October 2020 letter and the 29 October 2020 letter were not reasonable for the reasons set out in paragraph [67(3)] above.
3. The matters set out in paragraphs [67] and [68] above constitute special circumstances warranting an award of costs within s 60(3)(g) of the NCAT Act.
4. If, contrary to my finding, Burbank and Gornoa reasonably opposed the relief sought by the applicants in the substantive and the interim proceedings, then I am satisfied that the applicants would have succeeded in the substantive proceedings. In view of the 23 August 2018 orders, there was no reason Burbank and Gornoa to oppose the carrying out of the Works or the appointment of a compulsory strata managing agent to be responsible for the carrying out of the Works. In each case Burbank and Gornoa made a claim that had no tenable basis in fact or law within s 60(3)(c) of the NCAT Act. There were no relevant new legal or factual circumstances to justify not carrying out the Works or not appointing a compulsory strata managing agent to be responsible for the carrying out of the Works. In particular, their agreement on 18 November 2020 to the carrying out of the Works, did not provide a tenable basis to oppose the appointment of a compulsory strata managing agent to be responsible for the carrying out of the Works.
5. While I am satisfied that Burbank and Gornoa failed to comply with the 21 August 2020 orders as to the provision of evidence in hard copy by the service of e copies of the 3 December 2020 Gowers statement and the 4 December 2020 Lee statement on 4 December 2020, this failure did not unnecessarily disadvantage the applicants or constitute a material breach by the lawyers of Burbank and Gornoa of their duty in s 36(3)(b) of the NCAT Act so as to constitute special circumstances warranting an award of costs within s 60(3)(a) or (f) of the NCAT Act.
6. In these circumstances I am satisfied that there are special circumstances warranting an award of costs in favour of the applicants within s 60(2) of the NCAT Act.

If so, whether the discretion should be exercised to award costs

1. Having been satisfied of the condition in s 60(2) of the NCAT Act that there are special circumstances warranting an award of costs in favour of the applicants, I am further satisfied that that the discretion under this subsection should be exercised to award of costs in their favour of the substantive and the interim proceedings as agreed or assessed. There is no reason not to make such an award.

Orders

1. I make the following orders: 1. a hearing is dispensed with in relation to the costs of the substantive and the interim proceedings; 2. Burbank and Gornoa are to pay the applicants' costs of the substantive and the interim proceedings 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. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 May 2022