Oberto Pty Ltd v The Owners �e" Strata Plan No 2004 No 2 [2026] NSWCATCD 24;

(1) Note that the applicant has received from the respondent prior to hearing $38,801.25 of the amount originally claimed, without further contest in the proceedings.

(2) Order that The Owners - Strata Plan No 2004 pay Oberto Pty Ltd $24,354.90 on or before 22 December 2025.

(3) Order, in respect of costs (determination of which was deferred until after delivery of substantive decision) and definition of parties:

(4) Any party's application for costs and submissions, any further evidence in support of that application and any application for a further hearing on costs, are to be filed and served on or before 8 December 2025.

(5) Any party's submissions and any further evidence in response are to be filed and served on or before 22 December 2025.

(6) The parties' submissions should include a brief note, which should be by consent if possible, as to whether the respondent's designation should be amended to take account of the strata scheme registration in 2021 and, if so, how.

1. I note that neither party, for reasons, considered that a change to the OC's designation was required by the 2021 registration.

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

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.

(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.

(5) In this section -

costs includes -

(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. Section 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), together with rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules), provide that the ordinary costs rules apply, even in the absence of special circumstances required by s 60 of the NCAT Act, where "the amount claimed or in dispute in the proceedings is more than $30,000". Rule 38A applies the costs rules applicable in the primary decision to the costs of any appeal.
2. In Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [37]- [38], the Appeal Panel found that "'[P]roceedings'" refers to the process set in motion, or commenced, by lodging an application or notice of appeal. That process includes the steps taken by the Tribunal to hear and determine whether to grant the relief sought in the application or notice of appeal, as well as any interlocutory or ancillary steps. Proceedings are defined by the subject matter raised in the application or notice of appeal. The participants in proceedings are limited to the parties determined in accordance with [s 44 of the NCAT Act and the Rules].
3. In Owners SP 63341 v Malachite Holdings PL [2018] NSWCATAP 256 at [3]- [5] the Appeal Panel summarised the operation of r 38 as follows, from the detailed discussion at [86]-[111]:

"[3] Rule 38(2)(b) applies to the following proceedings:

(1) Where the relief claimed in the proceedings is for an order to pay a specific amount of money, or an order to be relieved from an obligation to pay a specific amount of money, and that amount is more than $30,000;

(2) Where an order is sought in the proceedings for the performance of an obligation (such as to do work), and the Tribunal has power make an order to pay a specific amount of money, even if not asked for by the claimant, provided that

(a) there is credible evidence relating to the amount the Tribunal could award; and

(b) that evidence, if accepted, would establish an entitlement to an order for an amount more than $30,000.

[4] Rule 38(2)(b) may also apply to proceedings where the orders sought in the proceedings depend upon the claimant proving there is a debt owed in order to establish an entitlement to the relief sought, and that amount is in dispute and is more than $30,000.

[5] Rule 38(2)(b) does not apply to proceedings:

(1) Where a claim for relief in the proceedings (not being a claim for an order to be paid or be relieved from paying a specific sum) may, as a consequence of that relief being granted, result in the loss of any property or other civil right to a value of more than $30,000; or

(2) Where there is a matter at issue amounting to or of a value of more than $30,000 but:

(a) no direct relief is sought and no order could be made in the proceedings requiring payment or relief from payment of an amount more than $30,000; or

(b) the relief sought does not depend on there being a finding that a specific amount of money is owed."

1. In Hanave PL v Wine Nomad PL [2022] NSWCATAP 361 at [40]- [42] the Appeal Panel expounded aspects of the above summary which were not the subject of findings in the partly-successful appeal to the Supreme Court on aspects of the substantive decision [2023] NSWSC 265:

"[40] As made clear in Malachite at [75] and following, r 38 is not concerned with the value of rights that might be in issue or any change in wealth. Unlike s 101(2)(r) of the Supreme Court Act 1970 (NSW), r 38 does not require consideration of whether the proceedings:

(1) involve a matter at issue amounting to or of a value of $30,000 or more, or

(2) involve (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $30,000 or more.

[41] Rather, r 38(2)(b) applies where "the amount claimed or in dispute in the proceedings is more than $30,000".

[42] The questions to be determined are what is the amount "claimed", what is the amount "in dispute" and what are "the proceedings" in circumstances where there are two applications, the second in the nature of a cross-application ("cross application").".

1. 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]. 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. The amount claimed in the proceedings exceeded $30,000. Although both parties addressed special circumstances as an alternative submission, there is no need for me to consider that aspect given the decision within the ordinary costs rules to which I have come.
3. The principles and rules 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 have been followed and applied in this Tribunal in many decisions, of which three are Thompson v Chapman [2016] NSWCATAP 6, Bonita v Shen [2016] NSWCATAP 159, citing earlier consistent authority, and more recently 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, separable 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: see, further, Access Training Group Ltd v Jane [2024] NSWCA 204 at [191].

(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. Additionally, the usual rule is that each party pays its own costs on a compromise of proceedings without a determination on the merits: see, in the Appeal Panel, Owners SP 5319 v Price [2020] NSWCATAP 245 at [39]- [44]; Hendie v Ikona Developments PL [2023] NSWCATAP 256 at [28]. 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.
2. However, a party may make the case that a costs order on a consent resolution 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) 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]- [7]; 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].
3. 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.
4. 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].
5. 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.
6. 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].
7. 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.
8. The formal offer of compromise process within some Court rules expressly provides the costs consequences of accepting or rejecting the substantive relief amount offered.
9. 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].
10. 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, those special legislative provisions interact with the costs rules, as relevantly determined by the Appeal Panel in Owners SP 74698 v Jacinta Investments PL [2021] NSWCATAP 387 at [180]- [208] and referred to in my substantive reasons.
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; the wording is broad enough also to encompass damages and costs orders against the owners corporation in favour of the lot owners when s 104 applies.
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.

Consideration and conclusions on costs and quarantining orders

1. The applicant lot owner sought its costs of the proceedings on the ordinary basis as agreed or assessed, saying in its written submissions in chief that "No offers were made by either party that have any relevance to the issue of costs".
2. The applicant invoked the ordinary outcome that costs followed the event being the overall outcome and said that it was plainly the successful party because it received $63,156.16 out of its total claim of $71,167.73.
3. If the $38,801.25 was sought by the OC to be treated separately, the applicant submitted that the principles concerning consent resolution did not apply. Payment by the OC of this amount was not the outcome of negotiation or resolution. Rather, the OC, after the proceedings had been brought paid over this aspect of the claim, "without any admission of liability" but without further development of an argument in favour of retaining the amount in whole or in part (referred to at [15] of my substantive reasons).
4. The applicant further invoked by analogy the analysis of the Appeal Panel (of which I was a member) in Bright Build PL v Owners SP 94514 [2021] NSWCATAP 163 at [64]- [65], particularly the reference to the situation often encountered where experts conclave and their evidence has significant impact on the outcome, with the outcome that some matters will accordingly be by consent on the prevailing expert evidence and others after contest on that evidence, but that in itself does not attract the principle governing consent resolution.
5. If the principles concerning consent resolution did apply, the applicant invoked the exceptions described earlier.
6. Finally, even excluding the claim which the OC did not ultimately contest, the applicant submitted that it was substantially successful on the balance of its claim and that claim, which was disputed, exceeded $30,000. Accordingly, the ordinary costs rules applied and the usual rule that costs followed the event because the applicant succeeded on the majority of this claim even if the award in its favour was less than $30,000.
7. The applicant also invoked, in the alternative, that the untenability of the OC's claim qualified as special circumstances and justified the exercise of discretion to award costs of the proceedings on the ordinary basis. As already said, I do not need further to consider that submission on its merits because of my conclusion below.
8. The OC submitted that there should be no order as to costs, having regard to the extent to which issues were resolved between the parties without determination on the merits, the parties' relative success on issues, and Calderbank offers by the OC dated 3 February 2025 and 31 March 2025.
9. The OC relied upon on payment of $38,801.25 from insurance monies without determination on jurisdiction and merits to attract the Lai Quin principle and sought to distinguish Bright Build as a case where there were consent orders, rather than a payment without admissions.
10. The OC also claimed success on most of the matters that it characterised as distinct issues. It relied upon the GST claim falling away when the insurer refused to pay GST and claimed that there was no longer the ability to deal with quarantining of the lot owner from the ordered compensation. (The lot owner's contribution to expenditure in respect of common property was not in contest despite the OC's submission extending to it.) The absence of lot owner submissions on pre-litigation expenses was a further instance that was highlighted.
11. I do not accept that the OC's analysis justifies a characterisation of each issue as a distinct or separate consideration to be taken into account in assessing the incidence where a costs order ought to fall. Each of the matters raised by the OC was part of the legal and factual matrix constituted by the overall claim for relief in respect of the OC's breach of its strict duty. None raised matters of fact or law sufficiently distinct or separate within that matrix to justify separate consideration in terms of costs. None was a dominant issue within that matrix. As the applicant lot owner's submissions pointed out, the lot owner achieved very substantial success on its claim which it had been required to litigate before obtaining that success (partly by concession as to payment, partly by contest and even within the remaining contest).
12. There was no need for the lot owner to rely on exceptions to the principles governing costs in respect of consent orders outlined above, given that the payment was unilateral, by the party against whom the claim was made, rather than as a result of a negotiated consent resolution. In any event, even if expressed to be without admissions, the payment came within the Lai Quin exceptions because the OC effectively surrendered on that aspect of the claim.
13. Two Calderbank offers were relied upon by the OC.
14. The first offer of 3 February 2025 was for $32,366.28 inclusive of costs and was expressed to be open until 5pm on 7 February 2025. It referred to reasoning for the offer in an earlier Calderbank offer of $15,000 (17 January 2025), which was not expressed to be inclusive of costs but which made it plain that the offer was for the balance of the applicant's claim after the OC's then-recent voluntary "without admissions" payment. (The amount offered in itself was about the raw amount of the offer exclusive of costs.)
15. There was no analysis in the OC's submissions and costs evidence of the likely costs position for the applicant under the ordinary costs rules and the applicant's overall outcome at date of offer or date when the offer lapsed. This in itself is sufficient, on the authority cited earlier in these reasons, to find that the OC has not established a basis in the Calderbank offer for exercise of costs discretion, because the OC has not shown that the assessment to be made at time of offer was such that it was unreasonable for the applicant to reject the offer.
16. In any event, given the detailed evidence and other preparation in the applicant's evidence to that point (prior to the OC's detailed preparation), one can readily infer that the difference of about $8,000 between the money order for balance of claim received by the applicant after final hearing and the offered amount was significantly less than the lot owner's costs to the point of offer, with the likely result that the costs-inclusive offer would be significantly less than or at best no greater than what would be achieved by way of money order with a costs order in addition at final hearing.
17. The second OC offer of 31 March 2025 was to pay $40,000 "in full and final settlement of all of the applicant's claims in the proceedings" and was expressed to be open for a period of 21 days. Although not precisely expressed, it appears to have been intended to be costs-inclusive. It also included an offer in respect of GST on the insurance claim monies that was conditional on receiving the GST from the insurer which (as recorded in the substantive decision) did not occur.
18. Again, there was no analysis in the OC's submissions and costs evidence of the likely costs position for the applicant under the ordinary costs rules and the applicant's overall outcome at date of offer or date when the offer lapsed. This in itself is sufficient, on the authority cited earlier in these reasons, to find that the OC has not established a basis in the Calderbank offer for exercise of costs discretion, because the OC has not shown that the assessment to be made at time of offer was such that it was unreasonable for the applicant to reject the offer.
19. In any event, the same ready inference can be made as just described in respect of the earlier offer relied upon, with some assistance from the reasoning in the offer letter. The offer letter referred to the applicant receiving under the offer "approximately 75% of the remaining amount of damages claimed in the proceedings and approximately 30% of the applicant's costs to date". This infers that the implicit apportionment in the offer was about $24,000 to compensation and $15,500 to costs out of a perceived estimate of the applicant's costs of about $50,000. In addition to the basis for inference described for the earlier offer, one can readily infer that the difference of about $15,500 between the money order for balance of claim received by the applicant after final hearing and the offered amount was still significantly less than the lot owner's costs to the point of offer, with the likely result that the costs-inclusive offer would be significantly less than or no greater than what would be achieved by way of money order with a costs order in addition at final hearing, or not sufficiently clearly better as to make it unreasonable not to accept the offer.
20. The inferential position as to costs and overall outcome at date of each offer was confirmed in the applicant's costs submissions and evidence in reply. The applicant's solicitor deposed to costs, after completion of its evidence in chief before the offers, at $28,143.44 at 3 February 2025 and $38,356.94 at 31 March 2025. Each outcome left the applicant with nominal relief after payment of its costs.
21. I accordingly find no basis for altering exercise of discretion by reason of either of the Calderbank offers relied upon by the OC. It was not unreasonable for the applicant to reject each offer and continue with the proceedings.
22. As stated in the substantive decision and repeated above, the principles in Jacinta Nominees apply and have been so found, with orders in accord with those principles to be made following further submissions on costs. It is clear from the substantive reasons and the analysis in these reasons that the applicant was successful in the proceedings, with the consequences that follow from application of the principles in Jacinta Nominees.

(1) Order that the respondent The Owners - Strata Plan No 2004 (OC) pay the applicant Oberto Pty Ltd's costs of the proceedings 2024/00195987 on the ordinary basis as agreed or assessed.

(2) Order that the damages and costs payable to the applicant under orders in the proceedings are to be paid by the OC from existing funds of the OC or from levies by the OC that do not in either case include funds contributed at any time by the applicant.

(3) Note that, the applicant having been successful in the proceedings within the meaning of s 104 of the Strata Schemes Management Act 2015 (NSW), pursuant to the operation of s 104 of that Act costs and expenses of the OC in the proceedings are to be paid by the OC from contributions levied in relation to lots in SP 2004 except for the applicant's lot with such contributions being proportional to the unit entitlements of lots except for the applicant's lot.

(4) Noting both parties' agreement with this course, order that a further hearing on costs is dispensed with.

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.