On 11 July 2019 orders were made refusing leave to appeal and dismissing the appeal.
On 20 August 2019 we made orders to accommodate the filing of submissions in the event that either party was minded to make an application for costs.
The respondent has filed an application for costs in accordance with those orders. The appellants have not filed costs submissions.
The respondent seeks an order that the appellants pay its costs of the appeal proceedings on the ordinary basis, as agreed or assessed. The respondent consents to dispensing with the need for a hearing on costs pursuant to s50(2) the Civil and Administrative Tribunal Act 2013 (the 'CAT' Act). We will make an order to that effect.
The respondent bases its costs application on s60 of the CAT Act. Section 60 creates the general rule that each party to proceedings must pay their own costs: s60(1). An Appeal Panel may only order costs "if satisfied that there are special circumstances warranting an award of costs" (emphasis added): s60(2). Section 60(3) sets out a non-exhaustive list of factors that may be considered in deciding whether there are special circumstances warranting an award of costs. The respondent bases its application for costs on s60(3)(a), (b), (c) and (f). Those sub-sections state :
'(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,
(f) whether a party has refused or failed to comply with the duty imposed by section 36 (3)'
The term "special circumstances" is not defined by the CAT Act. It has been interpreted to mean circumstances that are out of the ordinary, but not necessarily extraordinary or exceptional. The discretion to award costs must be exercised judicially having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs.
At [6] - [8] of the principal decision, McDonnell v The Owners Strata Plan No 64191 [2019] NSWCATAP 172 we recorded that:
'By consent orders made on 26 June 2019, the grounds of appeal were amended to those consisting of the bold headings in the appellants' written outline of submissions dated 24 June 2019. That change meant that virtually all of the grounds of appeal set out in the Notice of Appeal lodged on 26 April 2019 were abandoned.
The bold headings in these submissions raised five grounds of appeal. At the hearing of the appeal, three of these were not pressed and the scope of one of the remaining two grounds of appeal was considerably reduced.
The two remaining grounds of appeal were:
The Tribunal erred in finding that the appellants did not have approval for the works pursuant to s 65A of the Strata Schemes Management Act 1996 (Ground 1).
The Tribunal failed to properly consider the effect and operation of the orders made (Ground 2).'
[2]
The respondent's submissions
First, the respondent submits that the abandoned grounds of appeal were hopeless. This it states unnecessarily prolonged the final hearing, the appeal proceedings generally and caused it to incur costs unnecessarily.
Secondly, the respondent submits that the appellants failed to provide their submissions and the appeal book when ordered to do so, with the result that there were two additional directions hearings on 21 and 26 June 2019. In addition the respondent submits that the appellants refused to obtain a properly prepared transcript when it was submitted that a transcript was central to their case.
Thirdly, the respondent submits that the appellants should have known from its Reply to Appeal dated 14 May 2019 that their appeal was hopeless and should be abandoned.
As stated above, we found that on 26 June 2019, the grounds of appeal were amended and that change meant that virtually all of the grounds of appeal set out in the Notice of Appeal lodged on 26 April 2019 were abandoned.
In addition we found that of the five (5) amended Grounds of Appeal, three (3) were not pressed and the scope of one (1) of the remaining Grounds was considerably reduced.
[3]
Abandonment of Grounds of Appeal
We are satisfied that the Appellant's abandonment of its Grounds of Appeal on 26 June 2019 was a special circumstance warranting an award of costs. It is our view that the appellants' abandonment of their Grounds of Appeal may be characterized as an indication that the Grounds abandoned advanced no tenable basis for the appellants to contend that there had been an error of law or to support a submission that leave to appeal should be granted.
We would therefore make an order that the appellants must pay the respondent's costs from the date the Notice of Appeal was filed, namely 26 April 2019, to 26 June 2019, such costs if not agreed to be assessed on the basis set out in the legal costs legislation as defined in section 3A of the Legal Profession Uniform Law Application Act 2014.
We are also of the view that the appellants' abandonment of three (3) of their Grounds of Appeal at the hearing on 2 July 2019 was a special circumstance warranting an award of costs. In accordance with our view regarding the appellants' earlier abandonment of the their Grounds of appeal, it is our view that their later abandonment of three (3) out of five (5) of their Grounds of Appeal may also be characterized as an indication that the Grounds abandoned advanced no tenable basis for the appellants to contend that there had been an error of law, or to support a submission that leave to appeal should be granted.
We would therefore make an order that the appellants must pay sixty percent (60%) of the respondent's costs from 27 June 2019 to 2 July 2019, such costs if not agreed to be assessed on the basis set out in the legal costs legislation as defined in section 3A of the Legal Profession Uniform Law Application Act 2014.
Although the appellants were not successful in their appeal we are not of the view that the grounds of appeal that were pressed were untenable or hopeless. The fact that the appellants have not been successful in this Appeal does not of itself give rise to special circumstances warranting an order for costs in favour of the respondent. ACT Builders v Haridemos (No 2) [2016] NSWCATAP 118 at [41]. We therefore find that the appellants have not established special circumstances, beyond 2 July 2019. Therefore we will make no further costs orders other than those stated below.
[4]
Orders made
In accordance with the above reasons we will make the following orders:
1. The appellants must pay the respondent's Owners Strata Plan No 64191 costs of the Appeal from 26 April 2019, to 26 June 2019, such costs if not agreed to be assessed on the basis set out in the legal costs legislation as defined in section 3A of the Legal Profession Uniform Law Application Act 2014.
2. The appellants must pay sixty percent (60%) of the respondent's costs of the Appeal from 27 June 2019 to 2 July 2019, such costs if not agreed to be assessed on the basis set out in the legal costs legislation as defined in section 3A of the Legal Profession Uniform Law Application Act 2014.
[5]
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: 31 January 2020