Owers-Brown v The Owners-Strata Plan No 92562; Nakkan v The Owners-Strata Plan No 92562

Calvo v Ellimark Pty Ltd (No 2) [2016] NSWCA 197

Coscuez International Pty Ltd v The Owners-Strata Plan No 46433 [2022] NSWCATAP 147

Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219

Field v Commissioner for Railways for NSW [1957] HCA 92; (1957) 99 CLR 285

Flecknoe v Pared (No 2) [2025] NSWSC 854

Harper v Harper (No 2) [2025] NSWSC 360

Hogan v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (No 2) [2006] NSWSC 74

Kumaran v Employsure Pty Ltd (No 2) [2022] NSWCA 247

Metzner v Metzner [2021] NSWSC 1565

O'Brien v Women's Housing Company Limited [2026] NSWCATAP 3

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Selkirk v The Owners - Strata Plan No 2661 [No 2] [2024] NSWCATAP 44

Taylor v Lay [2023] NSWCATAP 328

The Owners Strata Plan No 74698 v Jacinta Investments Pty Ltd [2021] NSWCATAP 387

The Owners Strata Plan No 74698 v Jacinta Investments Pty Ltd (No 2) [2022] NSWCATAP 11

The Owners-Strata Plan No 2661 v Selkirk [2024] NSWSC 760

The Owners-Strata Plan No 55468 v Silberstein [2025] NSWCATAP 102

The Owners-Strata Plan No 62713 v Liberant [2022] NSWCATAP 80

The Owners-Strata Plan No 70871 v Turek [2022] NSWCATAP 83

1. The is an application to vary the costs order made in the substantive decision. Order 4 of the substantive decision dated 22 August 2025 was that there was no order as to costs, with each party to bear its own costs.
2. It is appropriate to dispense with a hearing and determine the application to vary the costs order made in the substantive decision 'on the papers' under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
3. On 22 August 2025, the Tribunal published the substantive decision. This costs decision is to be read in conjunction with the substantive decision.
4. In this decision, a reference to "Owers-Brown" is a reference to both Ms Owers-Brown and Mr Brown as co-applicants.
5. Consistently with the manner in which the parties and their legal representatives have conducted the Tribunal proceedings, Owers-Brown and the owners corporation have provided prolix, repetitive, and discursive variation costs submissions. Owers-Brown and the owners corporation have also sought to rely upon affidavit evidence from Solicitors that includes reference to oral settlement discussions between legal representatives on the first day of the hearing, in addition to 'Calderbank' written offers. Nakkan has also referred to oral settlement discussions.
6. In addition to the application to vary the costs order, and despite the fact that no appropriate order was sought in the substantive proceedings, Owers-Brown also seeks orders in the variation costs application that the lot owner not be liable by way of paying levies to the costs of the owners corporation in defending the proceedings, as well as being quarantined from a levy contribution to payment of Owers-Brown's legal costs. Owers-Brown relies on The Owners-Strata Plan No 62713 v Liberant [2022] NSWCATAP 80 (Liberant).
7. A consistent theme in this litigation has been each 'side' of the litigation blaming the other 'side' for being unreasonable and incurring costs, whilst asserting their behaviour was necessary, reasonable, and justified. The Tribunal's view is that each 'side' (and their legal representatives) bear shared responsibility for the complexity, expense, and time taken to conclude the proceedings. It is hoped that parties and representatives reflect upon their advice and behaviour, in the context of their duty to the Tribunal under s 36(3) of the NCAT Act. As Lord Reid observed in Rondel v Worsley [1969] 1 AC 191 at 227:

"(As) an officer of the court concerned in the administration of justice (a legal practitioner) has an overriding duty to the court, to the standards of his (sic) profession, and to the public which may and often does lead to a conflict with his (sic) client's wishes or with what the client thinks are his (sic) personal interests."

1. The substantive decision is long and detailed. In summary, two lot owners (Owers-Brown and Nakkan) on the first floor of a strata building brought proceedings against the owners corporation for repairs to common property under s 106 of the Strata Schemes Management Act 2015 (NSW) (SSM Act).
2. The repairs sought were to timber decking. The lot owners sought extensive repairs, that would cause the whole of the decking to be removed and replaced. The owners corporation argued the decking was not common property (and so not the responsibility of the owners corporation) but in the alternative that moderate repairs needed to be performed that involved only replacing certain decking boards.
3. Owers-Brown is a former strata committee member who was involved on behalf of the owners corporation with previous Tribunal proceedings where the owners corporation denied the decking was common property. In 2019, the owners corporation had obtained legal advice that the decking was common property. Notwithstanding that legal advice, the owners corporation (whilst Ms Owers-Brown was a strata committee member; and subsequently when she ceased to be a strata committee member and sought decking repairs to the decking that was proximate to her lot) maintained that the timber decking was not common property.
4. The owners corporation passed a common property rights by-law at a general meeting on 30 March 2023 imposing responsibility on lot owners for the repair and maintenance of timber decking. However, that by-law was not registered with the requisite period of time under the SSM Act, and went 'stale.'
5. Both lot owners also sought an order for damages under s 106(5) of the SSM Act in respect of legal costs incurred in the proceedings. The amount of legal costs was never quantified with a precise figure in either pleadings or written submissions, although there was a fleeting reference by Owers-Brown's Counsel and Nakkan's Solicitor in the early stages of the hearing that the amount sought exceeded $30,000.
6. The proceedings involved a significant amount of lay and expert evidence, although as the Tribunal pointed out in the substantive decision that most of the lay evidence had little, if any, relevance to the real issues in dispute. The proceedings involved 3 hearing days, with delays incurred whilst joint expert reports were prepared. The proceedings also involved extensive legal submissions by the parties.
7. The Tribunal:

(1) Found the timber decking was common property that was the responsibility of the owners corporation to repair, being a fixture.

(2) Found that the scope of works proposed by the lot owners was excessive and inappropriate. The replacement of a relatively small number of decking boards (as proposed by the owners corporation's expert) was found to be appropriate.

(3) Dismissed the claims by the lot owners that the owners corporation should pay damages under s 106(5) of the SSM Act in respect of legal costs incurred.

(4) Dismissed the lot owners' claim that a by-law passed on 30 March 2023 that made repair to timber decking the responsibility of lot owners should be declared invalid, because the by-law had not been registered within the applicable time period under the SSM Act, and so had no legal effect in any event. The owners corporation had given an "undertaking" that it would not register the by-law until the proceedings were determined, and the period to register the by-law had expired by the time the Tribunal proceedings were determined. It was the Tribunal that raised the issue of the applicable time limit under s 141(3) of the SSM Act at the commencement of the hearing. However, irrespective of whether the lot owners' withdrew or did not press the claim, the owners corporation unsuccessfully argued that it should be "relieved of its undertaking" not to register the by-law, despite there being no legal power to register it.

1. The Tribunal ordered that each party bear its own costs, but that the parties could make an application to vary the costs decision.
2. The Tribunal stated at [572]-[580] of the substantive decision:

"The Tribunal is satisfied that it makes a costs order in this decision, and if any party seeks to vary that order, it can do so. This has been an approach taken by the Tribunal and Appeal Panel in a number of matters (e.g. Wells Group Pty Ltd v Betts [2025] NSWCATAP 70).

The Tribunal is not satisfied that this is a type of proceedings where r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) applies (The Owners-Strata Plan No 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256). Although Owers-Brown and Nakkan sought damages under s 106(5) of the SSM Act in respect of legal costs and disbursements, the amount was unquantified in any pleading or submission, and there was no evidence provided to quantify loss. The Tribunal is not satisfied the amount "claimed or in dispute" in the proceedings exceeded $30,000, irrespective of the evidence of Mr Wilkie that the cost of repairs may exceed $100,000 (although this was speculative in the sense that Mr Wilkie also stated that a design by an appropriately qualified person under the DABP Act was required before rectification works could occur).

Even if the Tribunal was wrong in that conclusion, and r 38 of the NCAT Rules applied, the parties have had substantial successes and failures on different issues. If the provisions of s 60(1)-(3) of the NCAT Act did not apply, and the Tribunal was considering the issue of costs under 'common law' costs principles, the Tribunal would be satisfied that the appropriate order would be each party bear its own costs: Hogan v Trustee of the Roman Catholic Church (No 2) [2006] NSWSC 74 at [40].

For any party to be awarded costs, the Tribunal must be satisfied that there are "special circumstances" under s 60(2) of the NCAT Act, taking into account the matters in s 60 (3) of the NCAT Act.

The principles applicable to ss 60(1)-(3) are well established (see, for example, The Owners-Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273). The Tribunal needs to be satisfied (a) there are special circumstances; and (b) those special circumstances are sufficient for the Tribunal to exercise its discretion to depart from the usual principle under s 60(1) of the NCAT Act that each party pay its own costs.

In this matter, the parties had arguable positions on most of the claims and defences. Some of the claims and defences of the parties were not obviously strong (or not pursued), such as the issues involving the claim for s 106(5) damages; the operation of s 106(3); and the owners corporation being relieved of its 'undertaking'. Further, just as the owners corporation failed in its argument regarding the timber decking being lot property, Owers-Brown and Nakkan failed to obtain the order they were seeking regarding replacement of the timber decking; and also failed to adequately grapple with the issue that their own expert asserted his scope of works could not be actioned until a design was performed under the DABP Act.

The proceedings were lengthy and complex. However, the parties contributed to this and bear equal responsibility. The parties each sought to canvass a significant amount of lay evidence and cross examine lay witnesses, when the critical issues for determination involved (a) whether the timber decking was common property; (b) whether the duties under s 106 (1) or (2) of the SSM Act were breached; and (c) if so, what were appropriate remedial orders in respect of the condition of the common property.

As well, the time taken to conclude the proceedings was extended by the failure of the experts to adequately confer and prepare a Joint Expert Report until the final Joint Expert Report. Responsibility for that delay does not fall solely at the feet of one expert or one party.

If any party seeks to vary the Tribunal's cost orders it may do so, in accordance with the procedural orders made."

1. Parties made an application to the Tribunal to vary the costs orders.

(1) The owners corporation seeks that the lot owners' (Owers-Brown and Nakkan) pay the owners corporation's costs of the respective proceedings.

(2) Ms Owers-Brown seeks the owners corporation pay 75% of her costs of Case Number 2023/004016663.

(3) Mr Nakkan does not seek to vary the order that each party should pay its own costs, but opposes any order that he pay the owners corporation's costs.

1. Owers-Brown filed costs submissions and documents in chief on 8 September 2025 (under covering letter dated 5 September 2025) and "updated" costs submissions and documents on 19 September 2025.
2. The owners corporation filed costs submissions and documents in chief on 5 September 2025.
3. Owers-Brown filed "reply" costs submissions and documents on 3 October 2025.
4. The owners corporation filed costs submissions "in reply" on 7 October 2025 (under covering letter dated 3 October 2025). The submission of Counsel for the owners corporation is dated 26 September 2025.
5. Owers-Brown filed costs submissions "in response" to the owners corporation's submissions dated 26 September 2025 on 13 October 2025.
6. Nakkan filed costs submissions and documents "in reply" to the owners corporation's costs submissions dated 5 September 2025 on 3 October 2025.
7. Nakkan filed a further "witness statement" on 3 December 2025, that contained an email from the strata manager dated 21 November 2025 about the repair works ordered by the Tribunal. How that is relevant to the issue of costs is an unresolved mystery.

1. The submissions of the owners corporation's Counsel dated 5 September 2025 refer to an affidavit of the Solicitor for the owners corporation, Ms Graves, dated 4 September 2025.
2. The owners corporation seeks that Ms Owers-Brown and Mr Brown (in Case Number 2023/00401663) and Mr Nakkan (in Case Number 2023/00406758) pay its costs as agreed or assessed on the ordinary basis until 10 November 2023 (the first hearing date); and on an indemnity basis thereafter. In the alternative, the owners corporation seeks costs as agreed or assessed for the whole period of the proceedings.
3. The basis of the costs order sought is that Owers-Brown and Nakkan unreasonably refused to accept offers made by the owners corporation to resolve the litigation.
4. The submissions of the owners corporation are summarised as follows:
5. The amount claimed or in dispute in both sets of proceedings exceeded $30,000, and by reason r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) applies so that costs can be awarded irrespective of whether there are "special circumstances" under ss 60(2)-(3) of the NCAT Act.
6. The basis that the amount claimed or in dispute is above $30,000 is (a) it was submitted on the first day of the hearing that Ms Owers-Brown costs (sought as damages) were approximately $85,000; (b) Ms Owers-Brown gave evidence that the cost of replacing the deck was likely over $100,000; (c) Mr Nakkan "sought approximately $28,000" with reference to a quote in Mr Nakkan's affidavit of $28,850 (d) the expert relied upon by the lot owners (Mr Wilkie) gave evidence the cost of repairs for the scope of works he proposed (removal and complete replacement of the decking system) may exceed $100,000 and (e) monetary offers made by Owers Brown and Nakkan to the owners corporation during the course of the proceedings each sought an amount exceeding $30,000.
7. In the alternative, if r 38 of the NCAT Rules does not apply, there are "special circumstances" because the lot owners unreasonably refused Calderbank offers by the owners corporation.
8. The owners corporation relied on the following offers:

(a) A written offer to Owers-Brown dated 27 October 2023 which had been served on 7 November 2023.

(b) An oral offer made by the Solicitor for the owners corporation to the Solicitor for Owers-Brown in private negotiations conduced on the hearing date of 10 November 2023 of payment of $5,000 to Owers-Brown as a "contribution" to decking repair work to be performed and paid for by Owers-Brown and, additionally, that Owners-Brown would not "oppose the passage" of the by-law making lot owners responsible for the maintenance and repair of decking. According to Ms Graves, the legal representatives for Owers-Brown rejected the offer and did not put a counter offer because the parties were likely "too far apart." Ms Graves did not take a note, but recalls that Owers-Brown was seeking "approximately $80,000" to settle.

(c) A written offer to Owers-Brown dated 28 November 2023.

(d) A written offer to Owers-Brown dated 12 February 2024.

(e) A written offer to Nakkan dated 25 October 2023. A written counter offer and response was made by Nakkan's Solicitor on 30 October 2023.

(f) Oral negotiations with Nakkan's Solicitor on 10 November 2023. According to Ms Graves, the negotiations concluded with the owners corporation offering $7,500 and Nakkan's final position being payment of $15,000.

(g) A written offer to Nakkan dated 28 November 2023.

(h) A written offer to Nakkan dated 12 February 2024. There was a written response rejecting that offer on 19 February 2024.

1. There are multiple costs submission of Owers-Brown.
2. The submissions of Owers-Brown dated 5 September 2025 seek the following:

(1) The owners corporation pay 75% of Owers-Brown's costs of the proceedings on the ordinary basis as agreed or assessed; and

(2) An order under s 232 of the SSM Act that the Owers-Brown not be liable to contribute to the costs of the owners corporation by way of payment of a levy; and not contribute to any costs the owners corporation is ordered to pay Owers-Brown.

1. Owers-Brown submits that r 38 of the NCAT Rules applies to the proceedings, as Owers-Brown "claimed more than $30,000 for the repair of the deck". This submission is not based on a monetary amount claimed by Owers-Brown in respect of damages, but the cost of the rectification works. No reference is made in the submissions to the amount Owers-Brown was claiming in damages.
2. The submissions then set out an alternative argument that, if r 38 does not apply, there are "special circumstances" under ss 60(2)-(3) of the NCAT Act. The "special circumstances" identified are:
3. The owners corporation's conduct of the matter unnecessarily prolonged the proceedings (s 60(3)(b) of the NCAT Act). In particular, Owers-Brown submits that the lay evidence of the owners corporation and matters identified in its defence raised irrelevant issues and made unnecessary personal and disparaging comments about Ms Owers-Brown. Owers-Brown submits that 29 pages of transcript were cross examination of Owers-Brown; whilst the owners corporation's 5 lay witnesses were only cross examined for a total of 43 pages. Owers-Brown also asserts that certain evidence of the owners corporation was irrelevant to the real issues in dispute, which were focussed upon the expert evidence.
4. The delays in completing the final joint expert report were attributable to the conduct of the owners corporation's Solicitor and its expert Mr Calandra.
5. Owers-Brown (by her Solicitor) made an offer on 23 December 2022 that, if accepted "would have effectively achieved the same result" as ordered by the Tribunal. The offer was for the parties to agree upon a "suitably qualified and independent building consultant" to inspect the decking and provide a scope of works, with such works then to be performed by the owners corporation within a stipulated period of time. Had the offer been accepted, the "only issue for determination would have related to the passing of the absolution by-law."
6. Owers-Brown was the "substantially successful" party, in comparison to the owners corporation.
7. Owers-Brown sought orders under s 104 of the SSM Act that she not be liable to contribute by way of levies to the owners corporation's costs or costs amount ordered by the Tribunal to be paid to her. Owers-Brown submitted that she had "substantially complete success" against the owners corporation and relied upon the Appeal Panel decision in The Owners-Strata Plan No 62713 v Liberant [2022] NSWCATAP 80 to support the argument that an order under s 232 of the SSM Act that reflects ss 90 and 104 of the SSM Act should be made.
8. The supplementary submissions of Owers-Brown dated 19 September 2025 use the submissions of 5 February 2025 as a foundation, but add the following:
9. Transcript references to Day 1 and Day 2 of the hearing which Owers-Brown submits supports its submission that it was the fault of the owners corporation that there was excessive and unnecessary questioning of lay witnesses and exploration of irrelevant issues.
10. The owners corporation's argument that the timber decking was lot property not common property was "futile" and inconsistent with the legal advice from Grace Lawyers to the owners corporation that the decking was common property and obiter dicta of the Tribunal in 2021 proceedings that there was a "strong prima facie case" the decking was common property.
11. Owers-Brown relied on the offer of 23 December 2022 on Calderbank principles. The offer contained a genuine compromise and it was not reasonable for the owners corporation to have rejected it.
12. The submission that Owers-Brown was the successful party was further elaborated upon. The purported success of Owers-Brown was now described in emphatic terms as a "clear victory," because Owers-Brown succeed on the "fundamental issue" that the decking was common property and required repairs.
13. The submissions of 19 September 2025 conclude by submitting that the owners corporation should pay 75% of Owers-Brown's costs as agreed or assessed on the ordinary basis, and make an order under s 232 of the SSM Act that reflects ss 90 and 104.
14. Owers-Brown's submissions of 3 October 2025 are identified as "reply" submissions to the owners corporation's submissions of 5 September 2025.
15. The submission refer to the offers made by the owners corporation. Owers-Brown submits that it was reasonable to reject all of the offers made by the owners corporation for a variety of reasons. The offers were not a better result than Owers-Brown obtained; they did not contain a genuine element of compromise; the work orders were not "like for like;" and the monetary amounts offered were desultory.
16. The submissions of 3 October 2025 attach an affidavit of the Solicitor for Owers-Brown, Ms Hold dated 3 October 2025. That affidavit denies that, in negotiations on the first day of the hearing, Owers-Brown did not seek payment "of or near $80,000". Rather, Owers-Brown sought a work order for repairs. The settlement negotiations were "without prejudice." The affidavit also contains an extract of the transcript of the hearing, where Owers-Brown's Counsel informed the Tribunal that the "ball park figure" of damages sought under s 106(5) of the SSM Act was "about $85,000" which was the approximate amount of Owers-Brown's costs and disbursements of the proceedings at that time.

1. The owners corporation's reply submissions are dated 26 September 2025, and were lodged with the Tribunal under a covering letter dated 3 October 2025.
2. The owners corporation submits that its submissions on its Calderbank offers were based on findings made by the Tribunal at the hearing while Owers-Brown's submissions are based on the Tribunal reconsidering its reasoning in the decision.
3. The position of Owers-Brown was that the whole decking system must be replaced, and she failed in that claim. The owners corporation's offers of October and December 2023 "closely match the orders made" and it was unreasonable to reject them.
4. The submission that the owners corporation pay 75% of Owers-Brown's costs do not reflect the respective success of the parties on the issues for determination by the Tribunal.
5. No order should be made under s 232 of the SSM Act reflecting s 104. The application for the order is "redundant" as s 104 operates "independently of any specific order to the extent sought".
6. The lay evidence put forward by the owners corporation and the cross examination of Ms Owers-Brown was not unreasonable or excessive. Ms Owers-Brown was a member of the strata committee from late 2017 until mid-February 2023. She had given evidence on various matters pertaining to the timber decking and the positions of herself and the strata committee on a number of matters pertaining to repairs. She had given evidence about the "advice from Grace Lawyers" and the circumstances in which she had used that advice. The owners corporation was entitled to put forward evidence on the issues she had raised, and question her on those matters including her credibility.
7. The cross examination of Ms Owers-Brown did not consume an excessive amount of time. It was concluded by about 12.30 pm on the first day of the hearing. Comparatively, the cross examination of the owners corporation's lay witnesses was excessive.
8. The owners corporation was not responsible for any delay in completing the joint expert evidence; nor was there any restriction by the owners corporation in granting access to the experts. Any delay was caused by experts requesting further information, and Mr Calandra had acted reasonably.
9. There was nothing unreasonable about the owners corporation's failure to accept the offer of 23 December 2022. Owers-Brown, by asserting that she would only be bound by an expert agreed by the parties was "seeking to dictate both the consultant expert to be engaged and through that individual effectively dictate the scope of works." It was clear that Owers-Brown sought damages under s 106(5) of the SSM Act. Further, the offer was not a genuine compromise.
10. Owers-Brown failed on significant and substantial parts of her case ([37]-[39]). It is not clear from the submission whether this is raised in support of an order that Owers-Brown and Nakkan pay the owners corporation's costs as a separate submission to the owners corporation's reliance on the Calderbank and other offers (i.e. that Owers-Brown and Nakkan were not successful parties for the purpose of determination of legal costs), or whether this is raised solely in opposition to Owers-Brown being awarded any costs; and the separate issue of s 105 of the SSM Act.
11. No order should be made under ss 232 of the SSM Act in respect of ss 90 and 104 of the SSM Act in any event because Owners-Brown (and Nakkan) did not achieve "substantially complete success" (citing Selkirk v The Owners-Strata Plan No 2661 (No 2) [2024] NSWCATAP 44).

Owers-Brown's Reply Submissions Dated 3 October 2025 to the Owners Corporation's Submissions

1. Owers-Brown's submissions of 3 October 2025 are identified as "in reply to the Respondent's Submissions on costs dated 5 September 2025".
2. The documents of Owers-Brown contain an affidavit of Ms Hold, Solicitor, dated 3 October 2025 where she attests to the oral settlement discussions that occurred between the legal representatives of the parties on the first day of the hearing.
3. Owers-Brown's submissions of 3 October 2025 are summarised as follows:
4. Owers-Brown maintains that the owners corporation should pay 75% of her costs, on the basis that r 38 of the NCAT Rules applies, or "in the alternative" special circumstances are established under s 60(2)-(3) of the NCAT Act, because: (a) Owers-Brown was "substantially successful on the central and determinative issues"; (b) the owners corporation "unreasonably prolonged the proceedings" by maintaining that the timber decking was not common property despite having legal advice in 2019 it was, and by introducing "extensive and irrelevant" lay evidence.
5. The various Calderbank's offers and oral offers relied upon by the owners corporation: (a) did not contain a genuine element of compromise; (b) were reasonably rejected, for the reasons set out in [4]-[24] of the submissions.

Owers-Brown's Reply Costs Submissions Dated 13 October 2025

1. The submissions dated 13 October 2025 are identified as "in response to the Respondent's Submissions dated 26 September 2025".
2. It was Owers-Brown, rather than the owners corporation, who was the "substantially successful" party in the proceedings ([5]-[6]). Owers-Brown maintains that her legal representative did not say in oral settlement negotiation on the first day of the hearing that she was entitled to $70,000.
3. At [7]-[13] Owers-Brown repeated what had previously been submitted about the owners corporation unreasonably prolonging the proceedings; and Owers-Brown being the "successful" party for the purpose of s 104 of the SSM Act, and on the issue of costs generally.

1. Nakkan lodged submissions on 3 October 2025 "in reply" to the owners corporation's submissions of 5 September 2025.
2. Attached to those submissions are an affidavit of Mr Crowley, Solicitor, dated 3 October 2025 that annexes: (a) an email from Ms Nakkan to the Solicitor of the owners corporation dated 19 February 2024; and (b) the "Without Prejudice Save As to Costs" letter of the Solicitor for the owners corporation to the Solicitor for Owers-Brown dated 14 October 2022.
3. There is further attached an affidavit of Mr Nakkan dated 3 October 2025. That affidavit contains a narrative of the dispute from the perspective of Mr Nakkan. Mr Nakkan asserts that he is not to be considered in the same position as Ms Owers-Brown, and he and Ms Nakkan did not employ the same "expensive and legally complicated" strategy that was employed by the owners corporation and Owers-Brown. He further refers to significant health problems of Ms Nakkan.
4. The submissions of Mr Crowley, Solicitor, filed on 3 October 2024 assert it was not unreasonable for Nakkan to reject the offers made by the owners corporation at the time they were made. Reference is made to both the oral settlement negotiations on the first day of the hearing; and the written offers.

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.

(4) If costs are to be awarded by the Tribunal, the Tribunal may -

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.

(a) the costs of, or incidental to, proceedings in the Tribunal, and

(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.

1. Rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) states as follows:

38 Costs in Consumer and Commercial Division of the Tribunal

(1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal.

(2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if -

(a) the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under clause 10(2) of Schedule 4 to the Act in relation to the proceedings, or

(b) the amount claimed or in dispute in the proceedings is more than $30,000.

1. In Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186, the Appeal Panel stated at [206]:

"[206] In the circumstances set out in r 38(2)(b) of the Rules, the Tribunal does not apply s 60 [of the NCAT Act] but rather has an unfettered discretion in relation to costs, although that discretion must be exercised judicially."

1. In the substantive decision, the Tribunal referred to r 38 of the NCAT Rules not being invoked because, although Owers-Brown and Nakkan had claimed damages under s 106(5) of the SSM Act, there was no evidence of the amount claimed and the amount claimed had never been identified.
2. However, both Owers-Brown and the owners corporation point to brief oral submissions made at the hearing by Owers-Brown and Nakkan where, in response to an enquiry from the Tribunal, it was orally indicated that the amount sought exceeded $30,000.
3. The Tribunal overlooked those brief submissions when preparing the reasons in the substantive proceedings. Considering the volume of material and submissions proffered in these proceedings, that is understandable. It is also unusual that a party seeking damages under s 106(5) of the SSM Act (as were Owers-Brown and Nakkan) did not set out in writing in Points of Claim or in written submissions the quantified amount sought.
4. The oral identification by both Owers-Brown and Nakkan that they were respectively seeking an amount of damages under s 106(5) of the SSM Act is sufficient for the Tribunal to now conclude that r 38(2)(b) of the NCAT Rules applies.
5. Accordingly, costs principles apply that do not involve consideration of ss 60(1)-(3) of the NCAT Act.
6. In the substantive decision, the Tribunal stated that if r 38 of the NCAT Rules applied, it would have made no order as to costs (i.e. that each party bear its own costs of the proceedings) because both parties had successes and failures on significant issues in the proceedings. In summary:

(1) Owners-Brown and Nakkan lost on the claim for damages under s 106(5) of the SSM Act.

(2) The owners corporation lost on the issue of whether the decking was common property.

(3) Owers-Brown and Nakkan lost on the appropriate method to rectify.

(4) The owners corporation lost on its claim that it should be "relieved" of an undertaking not to register the timber decking by-law that had gone stale, and could not be registered.

(1) Owers-Brown and Nakkan won on the issue of whether the timber decking was common property and that some repairs were required.

(2) Owers-Brown and Nakkan won on the issue raised by the owners corporation that the owners corporation should be "relieved" of its undertaking not to register the timber decking by-law.

(3) The owners corporation won on the type of repairs to be conducted to the timber decking (i.e. the appropriate method to rectify).

(4) The owners corporation won on the claims for damages under s 106(5) of the SSM Act brought by Owers-Brown and Nakkan.

1. A striking aspect of the costs submissions of Owers-Brown and the owners corporation is the narrow subjective prism they construe "success." The parties make extensive submissions on their own purported "success" in comparison to the other party, but fail to adequately acknowledge or grapple with their failures.

Costs Principles When r 38 of the NCAT Rules Applies

1. The usual principle is costs "follow the event" in the sense that the unsuccessful party pays the successful party's costs to compensate the successful party for the legal costs and disbursements it incurred in bringing the proceedings (Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [67]).
2. Ultimately, the task of the Tribunal is to make a costs order that is fair in all the circumstances. In Calvo v Ellimark Pty Ltd (No 2) [2016] NSWCA 197 at [8]- [10] (Calvo), the Court (Ward, Gleeson and Leeming JA) stated:

"[8] Where a plaintiff is ultimately unsuccessful, but a defendant is unsuccessful on some - perhaps the majority - of matters raised by way of defence, there is recurringly a question whether costs should follow the event, or whether there should be a special costs order reflective of the plaintiff's success on individual issues. In each case, it is very much a matter of impression, based upon matters such as the severability of the issues, the reasonableness of reliance upon the issues, and the extent to which the issues incurred expending additional costs and time.

[9] ..., the mere fact that a defence was reasonably arguable does not preclude a court from making a special costs order departing from the starting point of costs following the event. Ultimately, as Hodgson JA explained in Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121]:

underlying the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs.

[10] In making that assessment of fairness, regard may be had to the extent to which an issue contributed to the cost of the trial, and the extent to which it was arguable. However, the discretion as to costs is not circumscribed by the binary question whether or not an unsuccessful defence was reasonably arguable. The ultimate question - what is the appropriate order to achieve fairness - may in an appropriate case require a more nuanced analysis."

1. Calvo was cited with approval by the NSW Court of Appeal in Kumaran v Employsure Pty Ltd (No 2) [2022] NSWCA 247 (Kumaran).
2. What is the "event" depends upon the practical result of a particular claim. The NSW Court of Appeal (Ward JA; Emmett JA; and Gleeson JA) stated in Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 (Doppstadt) at [15]:

"[15] Depending on the nature of the litigation the "event" may be characterised in more than one way. The authorities were reviewed by Ward J in Australian Receivables Ltd v Tekitu Pty Ltd [2011] NSWSC 1425 at [24]- [26], [54]-[60]. Generally the "event" refers to the event of the claim or counterclaim, as the case may be, and may be understood as referring to the practical result of a particular claim: Windsurfing International Inc v Petit [1987] AIPC 90-441 at 37,861-37,862 (Waddell J)."

1. In Doppstadt, the NSW Court of Appeal stated at [16]-[22]:

"[16] Here, if one looks at the appeal, the appellants were unsuccessful on liability, interest, and costs but succeeded in respect of the damages awarded. Ignoring for the moment the respondents' success on the cross-appeal (on the failure to mitigate loss issue), the appellants were successful in reducing three components of the damages awarded, the most significant of which was a substantial reduction in the estimated profit of a Peterson machine by reducing the period of calculation from 12 to 7.5 months. In monetary terms the amount of damages assessed by the primary judge, before taking into account failure to mitigate loss, was reduced from $381,703.20 to $216,424.32: see Lovick & Son Developments Pty Ltd & Anor v Doppstadt Australia Pty Ltd & Anor (No 2) [2012] NSWSC 1579 at [39]- [40] and [349] principal reasons. However, the respondents succeeded on their cross-appeal on the failure to mitigate loss issue. As a consequence the reduction in the second respondent's damages by one third by the primary judge was set aside. In monetary terms the appellants succeeded overall in reducing the award of damages in favour of the second respondent (Engineering) by approximately $38,000. The first respondent (Developments) was totally unsuccessful on its cross-appeal on damages.

[17] The usual circumstance in which a court will deprive the successful party of the costs relating to an issue on which the successful party lost is when that issue is clearly dominant or separable: Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 at [64] (Campbell JA). See also Waters v PC Henderson (Australia) Pty Ltd [1994] NSWCA 338; 254 ALR 328 at 330-331 (Mahoney JA).

[18] The principles governing the making of an order as to costs so as to reflect the time taken in dealing with a particular issue in which the successful party in the proceedings or on the appeal did not succeed were reviewed by this Court in Elite Protective Service Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373, and summarised in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38] (Beazley, Ipp and Basten JJA), as follows:

"Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v PC Henderson (Australia) Pty Ltd.

· In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24]. A similar approach is adopted on appeal.

· If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 at [27].

· Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: State of New South Wales v Stanley [2007] NSWCA 330 at [18] per Hislop J (with whom Beazley and Tobias JJA agreed).

· A separable issue can relate to "any disputed question of fact or law" before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34].

· Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James v Surf Road Nominees Pty Ltd (No 2), citing Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261 at 272."

[19] Where there has been a mixed outcome in the proceedings, and it is appropriate to entertain the process of apportioning costs as between different issues in the proceedings, in general such an exercise will be carried out on a relatively broad brush basis, and largely as a matter of impression and evaluation by the Court: James v Surf Road Nominees Pty Ltd (No 2) at [36]; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22. In our view, such an exercise is not warranted in the present case, particularly having regard to:

(1) the multiple sub-issues (on which there was some mixed success for each of the parties) raised by the primary issues of liability and damages; and

(2) the substantial degree of overlap between the liability issue and the failure to mitigate loss issue so far as both concerned the operation and performance of the Doppstadt shredder - that is, whether the failures of the Doppstadt shredder were due to operator error and failure to service and maintain the shredder in accordance with the Doppstadt operator manual, or because the shredder did not perform as represented by the appellants. The respondents' success on the issues of liability and failure to mitigate was outweighed by the appellants' success on the damages issue.

[20] Nor do we consider that this is an appropriate case where one party's failure on what might be viewed as a separable issue, such as the appellants' failure on liability (except in one small respect) or the first respondent's failure on damages, should be treated as so clearly dominant an issue as justifying an order for costs in respect of that particular issue. It is important to bear in mind at all times the overall outcome in monetary terms of these proceedings on appeal as between the parties.

[21] In our view, in the circumstances of this appeal, it is preferable to make a costs order which is the result of an overall assessment reflecting the respective successes of the parties on appeal, rather than separate orders directed to specific issues on which one or other of the parties was successful. We do not consider that an issue-by-issue approach will produce a result that is fairer than looking at the matter globally.

[22] Taking account of the fact that the appellants' overall success in the appeal (on the issue of damages) translated into only a small reduction of approximately $38,000 in the damages awarded to the second respondent, we are not persuaded that we should depart from the preliminary view that the appropriate order in the present case is that each party pay their own costs in this Court. This order is not to be taken as affecting order 7 made by this Court on 21 May 2014 concerning the costs of the respondents' notice of motion filed 14 November 2013, which was dismissed with costs.

1. It is usually the case that the "successful" party is only deprived of its costs on issues or claims that it was unsuccessful if the claim or issue on which it was unsuccessful is dominant or separable, so that a Court or Tribunal is not tasked with attempting to differentiate between particular issues on which the party may not have succeeded. However, as the NSW Court of Appeal held in Doppstadt (which involved a party successful in an appeal, but only to the extent of a small reduction in damages), it is not always the case that a Court or Tribunal must find that an issue or claim is clearly dominant or separable to depart from the position that a "successful" party be deprived of its costs.
2. Where each of the parties has had substantial success against the other party (and, conversely, substantial failures) it is open to a Court or Tribunal to make an order that there be no order as to costs, which has the effect that each party bears its own costs. In AWB Ltd v Cole (No 6) (2006) 235 ALR 307; [2006] FCA 1274, Young J stated at [14]-[17]:

"[14] The Court's discretion to order costs under s 43 of the Federal Court of Australia Act 1976 (Cth) is unfettered, except that it must be exercised judicially. The usual order as to costs is that a successful party will have its costs paid on a party and party basis by the unsuccessful party: Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225 at 232-234. As the passage from Cretazzo indicates, the mere fact that a substantially successful applicant fails on particular issues of fact or law along the way may not afford an adequate ground for depriving that applicant of some or all of its costs. On the other hand, it lies within the Court's discretion to make a costs order that reflects the degree of success attained: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234-235 [11] and 236 [15]. Depending on the circumstances, it may be an appropriate exercise of the Court's discretion to deprive a party of its costs in respect of an issue which it lost at trial: Cummings v Lewis [1993] FCA 190; (1993) 41 FCR 559 at 599-604; and Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd (No 2) [2005] FCA 1400 at [3]. Alternatively, the Court can order a successful party to pay some costs in respect of unsuccessful aspects of the case: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136; Forster v Farquhar (1893) 1 QB 564; and Inn Leisure Industries Pty Ltd v DF McCloy Pty Ltd (No 2) (1991) 28 FCR 172.

[15] In many cases, these principles can only be applied sensibly by taking a broad view of the results of the case and the issues that were litigated. An allocation of costs in a case of mixed results can rarely if ever be done with mathematical precision: Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261 at 272 per Gummow, French and Hill JJ.

[16] Taking a broad and overall view of the outcome of this case, I consider that both AWB and the Commonwealth achieved a substantial measure of success. I cannot agree with AWB's submission that, in material respects, it was the successful litigant. The Commonwealth succeeded on a number of very important issues. It established that privilege did not attach to numerous documents that are likely to be material to the issues being investigated by the Commission. AWB did not merely fail "along the way" to prove particular issues of fact and law which, in the end, did not prevent it achieving substantial success; rather, AWB lost some of the most substantial issues that were litigated. Those issues involved more than half of the hearing time occupied by this case.

[17] In all the circumstances, I consider that the just and appropriate order is that there be no order as to the costs of the proceeding. The result will be that AWB and the Commonwealth must each bear its own costs."

1. In Metzner v Metzner [2021] NSWSC 1565, the Court (Rein J) stated at [17]:

"[17] As the Defendant's submissions point out, for the purposes of determining costs, the "event" is the practical result of a particular claim (see Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15] per Ward, Emmett and Gleeson JJA) and a broad, evaluative assessment of what justice requires is required: Gray v Richards (No 2) [2014] HCA 47; (2014) 89 ALJR 113 at 113-114. As was said in James & Ors v Surf Road Nominees Pty Limited & Ors [2005] NSWCA 296 at [36] quoting Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261, even on the question of separable issues, where there has been a mixed outcome in proceedings justifying apportionment, the exercise of discretion will often depend upon matters of impression and evaluation. It is also certainly open to a court to make no order as to costs where both parties have had substantial success: see Hogan v Trustees of the Roman Catholic Church (No. 2) [2006] NSWSC 74 at [40]."

1. Examples of where the exercise of discretion warranted no order as to costs (or each party bearing its own costs) due to each party having substantial success against each other on the claims or issues in dispute include: Hogan v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (No 2) [2006] NSWSC 74; Flecknoe v Pared (No 2) [2025] NSWSC 854; and Taylor v Lay [2023] NSWCATAP 328 at [162].
2. These proceedings clearly involve mixed success of the parties on the issue and claims in dispute. Owers-Brown concentrates on the fact that the owners corporation argued the decking was not common property and failed on that argument, with a work order being made to repair common property. However, that submission (which forms a basis of the submission that the owners corporation should pay 75% of the lot owner's legal costs and disbursements of the proceedings) is not, assessed objectively, an accurate assessment of the outcome of the proceedings, of the manner in which the litigation was conducted.
3. Owers-Brown clearly sought that the whole decking system be replaced. This was not a case where Owers-Brown sought there be limited decking board replacement. To disregard the fact that Owers-Brown failed to establish that the whole decking system be replaced is inappropriate. It was never the position of Owers-Brown that she consented to, or agreed with, an order that decking boards be replaced in a limited fashion.
4. Owers-Brown also brought a claim for damages under s 106(5) of the SSM Act for which she was unsuccessful. That claim for damages was not a minor or insignificant part of the dispute.
5. It also cannot be said that the owners corporation was the successful party such that it should be awarded costs in circumstances where the owners corporation argued the decking was not common property, and failed on that argument. The owners corporation put forward extensive legal arguments that the timber decking was not common property, which involved detailed legal analysis in the substantive decision. It cannot be overlooked that the owners corporation sought to defend the proceedings on the primary basis that the timber decking was not common property, despite having legal advice in 2019 that it was.
6. The conduct of both 'sides' (with Nakkan playing a more limited role than Owers-Brown) caused or significantly contributed to this litigation being lengthy and complex. Both 'sides' introduced and relied upon lay evidence that was otiose to the real legal issues in dispute and engaged in cross examination of lay witnesses which was unnecessary or, at best, had a tenuous link to the real issues in dispute. Further, the Tribunal does not accept that the delays in finalising a joint expert report were the exclusive responsibility of one party, or its expert.
7. The Tribunal is satisfied that the appropriate exercise of its discretion is not to make a costs order depriving Owers-Brown with a percentage of her costs, but rather that the appropriate outcome is that each party bear its own costs.
8. However, that is subject to consideration of the Calderbank offers and other offers of settlement that were raised by the parties.

1. The principles regarding Calderbank offers are well established. They were summarised Richmond J in Harper v Harper (No 2) [2025] NSWSC 360 as follows (at [49]-[53]):

"The failure by a party to accept an offer of compromise which is a Calderbank offer where that party does not achieve a judgment more favourable than the offer is one of the circumstances in which the court may exercise its discretion under r 42.1 of the UCPR to make some order other than costs following the event on the ordinary basis. However, merely because the party to whom the offer was made does not ultimately obtain a more favourable judgment does not automatically lead to a favourable costs order, or raise a presumption that such an order should be made: E Group Security at [57].

The onus is on the party making a Calderbank offer to satisfy the court that it should exercise the costs discretion in its favour, in particular that (a) the Calderbank offer embodies a genuine compromise and (b) it was unreasonable for the other party not to accept it, which is an evaluative judgment to be made by reference to the terms of the offer and all the relevant surrounding circumstances at the time that it was made, and not with the benefit of hindsight: Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 at [8], [11], [16]; Wheatley v Lakshmanan (No 2) [2022] NSWSC 851 at [97]; E Group Security at [57]-[58].

Relevant factors in determining whether the rejection of an offer was unreasonable include (a) the stage of the proceeding at which the offer was received; (b) the time allowed to the offeree to consider the offer; (c) the extent of the compromise offered; (d) the offeree's prospects of success, assessed at the date of the offer; (e) the clarity with which the terms of the offer were expressed; and (f) whether the offer foreshadowed an application for indemnity costs in the event of the offeree rejecting it: Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298 at [25]; Miwa at [12]; Wheatley at [98]; E Group Security at [59]. A finding of unreasonableness should not be made other than on clear grounds: E Group Security at [58].

In relation to (d), what is required is an objective assessment of the offeree's prospects of success as at the date of the offer: Hazeldene's Chicken Farm at [30].

The practice of treating Calderbank offers in this way is informed by the public policy objective of providing an incentive to the parties to end their litigation as soon as possible and discouraging wasteful and unreasonable behaviour by litigants: Commonwealth Bank of Australia v Gretton [2008] NSWCA 117 at [41]. However, the mere fact that the offer is a reasonable one does not make it unreasonable for the offeree to have rejected it: Gretton at [74] and [120]."

The Owners Corporation's Calderbank Offers to Owers-Brown

1. The owners corporation cannot demonstrate the offer to Owers-Brown dated 27 October 2023 was sent until 7 November 2023 (i.e. less than 3 full days prior to the first hearing date of 10 November 2023).
2. The offer was that the owners corporation would conduct at its own cost "like for like" repairs to the timber decking with "spotted gum" that would be "treated and stained upon completion of the works" on the basis that (a) the parties are to "co-operate" regarding the repair; (b) Owers-Brown would "not oppose in any way" registration of the by-law transferring responsibility of decking repairs onto lot owners; (c) the settlement is confidential and the parties are restrained from "disparaging" the other "in this or any other past or current proceedings"; (d) there be no order as to costs; (e) the obligation regarding confidentiality and non-disparagement "can be secured by a deed of release"; and (f) the parties would be bound by their "respective obligations" under the SSM Act "in relation to the ongoing management of the property". The offer was open to 5.00 pm on 9 November 2023.
3. It was not unreasonable for that offer to be rejected for the following reasons:
4. It was not better than the ultimate outcome in respect of the repairs ordered. The Tribunal ordered PVC replacement boards, for reasons set out in the substantive decision. The offer involved "spotted gum" boards.
5. The offer was open for an unreasonably short period of time prior to expiring.
6. The offer was vague and uncertain. It involved the parties entering into a separate Deed in respect of confidentiality and non-disparagement. No draft Deed was provided with the offer. It is entirely speculative as to what conditions were sought to be imposed in the Deed.
7. The uncertainty and ambiguity of the offer is magnified by the reference to the lot owner "not opposing" the passing of the by-law, yet there is reference to parties being bound by their "respective obligations" under the SSM Act. Assessed objectively, the condition that the lot owner would consent to and "not oppose in any way" registration of the by-law implies that the lot owner would not be able to bring (or would have difficulty in successfully bringing) subsequent proceedings in the Tribunal to have the by-law declared invalid under s 150 of the SSM Act. The offer then refers to the parties "continuing to be bound by their respective obligations" under the SSM Act "in relation to the ongoing management of the property" (which implies the lot owner will be bound in the future to repair and maintain the decking in accordance with the by-law). It was up to the owners corporation to make clear whether acceptance of the offer would, or would not, affect the potential rights of the lot owner under s 150 of the SSM Act.
8. The preamble to the offer (which explains why the offer is reasonable and should be accepted) contains an incorrect assertion. The offer states "Where a party brings an application under s 106 of the Strata Schemes Management Act 2015 (NSW) (the SSMA) the preferred position of the Tribunal is for a work order to be made, failing which they will only make a money order in certain circumstances". That assertion wrongly conflates s 48MA of the Home Building Act 1989 (NSW) into the duties of an owners corporation under ss 106(1) and (2) of the SSM Act; and the distinct cause of action under s 106(5) of the SSM Act that, if the owners corporation is in breach of its duty, a lot owner can be awarded damages for reasonably foreseeable loss caused by the breach.

(1) The owners corporation to repair, at its cost, the timber decking on a "like for like" basis using treated spotted gum boards or an analogous timber product rather than synthetic timber. The works would restore the deck to its original condition and be performed in accordance with Australian Standards.

(2) The parties are to co-operate in respect of the repair, including if the repairs "require a practical adjustment or accommodation in any way."

(3) The lot owner would "agree to, and not oppose in any way, the proposal and passage of what has become discussed as the "timber decking by-law" that would transfer the ongoing responsibility for the timber deck to lot owners as per the long-standing intent of the owners corporation."

(4) The settlement is to "remain confidential and both parties are restrained from disparaging the other."

(5) No order as to costs.

1. The offer was open until 5.00 pm on 12 January 2024.
2. The offer "noted" again that a deed could be entered into to secure "confidentiality and non-disparagement" and "the parties will continue to be bound by their respective obligations under the Strata Schemes Management Act 2015 (NSW) (SSMA) in relation to the ongoing management of the property".
3. The offer also contained an explanation of why the owners corporation asserted the offer was a compromise and it would be unreasonable to refuse the offer.
4. Again, the Tribunal is satisfied that it was reasonable to have rejected the offer. The offer is in similar terms to the previous offer, other than in respect of the additional time to consider the offer. The offer is, again, not better than the lot owners achieved, because it refers to decking being replaced by timber product rather than PVC product. The offer remains vague and uncertain, because it invites or involves the parties entering into a Deed, the terms of which are not set out. The offer, again, does not make clear whether it involves the lot owner refraining from bringing any future action under s 150 of the SSM Act in the Tribunal in respect of the by-law that proposed to pass responsibility for maintenance and repair of the terrace timber decking to lot owners.

1. The Calderbank offer of 12 February 2024 was open for "5 business days". It's terms were as follows:

(a) Lot owner to allow access; owners corporation's contractor attend and repair the decking by replacing "decking boards with treated Spotted Gum" at the cost of the owners corporation.

(b) Lot owner to relocate outdoor furniture/items, as necessary.

(c) The repairs are to exclude "pool area and underneath BBQ and outdoor kitchen".

(d) The lot owners agreeing to and not opposing in any way the "timber decking by-law" imposing responsibility for repair and maintenance of the decking on lot owners.

(e) The settlement remaining confidential and both parties are restrained from disparaging the other.

(f) The parties "will enter into a Deed incorporating these terms and obtaining a mutual release of any other claims relating to the subject of these proceedings."

(g) There is no order as to costs.

1. Again, for similar reasons as to the previous offers, it was not unreasonable for Owners-Brown to reject the offer. The offer involved "treated Spotted Gum" replacement boards, and the repair order made by the Tribunal involved "PVC boards of similar colour to the existing boards." The offer made clear that it was contingent on the parties entering into a Deed that included confidentiality and non-disparagement clauses, but did not provide a copy of the proposed Deed. The offer, again, did not make clear whether the agreement to consent to and not oppose the by-law imposing responsibility for terrace decking repairs and maintenance on lot owners affected the lot owner's potential rights under s 150 of the SSM Act after the by-law was registered.

The Owners Corporation's Calderbank Offers to Nakkan

1. The offer was expressed to be open to 5.00 pm on 8 November 2023.
2. The offer was in the same terms as the offer to Owers-Brown dated 27 October 2023, other than being open for a slightly longer period. For the same reasons as previously expressed in respect of the Owers-Brown offer, it was reasonable for Nakkan to reject the offer.

1. The offer was in the same terms as the offer to Owers-Brown dated 28 November 2023. For the same reasons as previously expressed in respect of the Owers-Brown offer, it was reasonable for Nakkan to reject the offer.

1. The offer was in the same terms as the offer to Owers-Brown dated 12 February 2024. For the same reasons as previously expressed in respect of the Owers-Brown offer, it was reasonable for Nakkan to reject the offer.

1. The submissions of Owers-Brown's Solicitor dated 5 September 2025 attach two written offers. One is from the owners corporation's Solicitor dated 12 December 2022, which has not been referred to in any detail in the costs submissions of the owners corporation. Presumably, that correspondence is attached to provide context to the offer of 23 December 2022. The second is an offer from Owers-Brown to the owners corporation dated 23 December 2022.
2. In respect of the owners corporation's offer of 12 December 2022, that was an open offer to appoint a jointly agreed Counsel or Senior Counsel to privately determine the "narrow issue" of the "separate question" of whether the timber decking was common property based on written submissions and with each party to bear its own costs and pay the costs of the Counsel or Senior Counsel in equal shares.
3. If that offer was being relied upon by the owners corporation on the issue of costs, the Tribunal does not regard it as an offer that was unreasonable not to accept. It is entirely speculative what the jointly agreed Counsel or Senior Counsel would have decided, and there was no right of "appeal."

1. The offer does not refer to Calderbank v Calderbank [1975] 3 All ER 333, but is expressed to be "without prejudice save as to costs".
2. The offer states it is a response to the owners corporation's letter of 12 December 2022. The offer was made before Owers-Brown commenced Tribunal proceedings.
3. The offer was open for "5 weeks from the date hereof". The terms of the offer were as follows:

(1) A "suitably qualified and independent building consultant" to be joint agreed by the parties and retained by the owners corporation to inspect the timber decking issues; provide a scope of works to rectify the identified defects "at the owners corporation's cost."

(2) The inspections by the jointly agreed expert be conducted within 2 months.

(3) The recommended scope of works be tendered to a suitable licensed remedial contractor within 4 weeks of receipt of the scope of works.

(4) The repair works then be completed within 3 months, which could be extended if there were reasonable grounds to do so.

"Should this offer be accepted the parties will enter into a suitable Deed of Settlement as to the above terms."

1. The offer makes no reference to whether Owers-Brown claims, or intends to claim, damages under s 106(5) of the SSM Act. The offer obliquely refers to this issue as follows:

"It is also clear from expert evidence already obtained by our clients and provided to the owners corporation that there are defects in existence of the timber decks. If we are correct in our views that the decks are common property, which we say they are, the owners corporation will be held liable for any damages resulting from any breach of its obligations under s 106 of the Strata Schemes Management Act 2015 (s 106)".

1. It was not unreasonable for the owners corporation not to accept this offer due to its broad and uncertain terms. No proposed experts are identified, nor it is explained what will happen if the parties cannot agree to an expert. As no terms are identified for what works are to be done, it is entirely speculative as to whether the expert (if there was joint agreement) would have proposed a scope of works more favourable to Owers-Brown than the orders made by the Tribunal. Further, the offer refers to parties entering into a Deed. However, no draft Deed that clearly identifies the proposed terms was provided with the offer.

The Oral Settlement Negotiations of the Parties

1. The Solicitors of the owners corporation, Owers-Brown and Nakkan have decided it is appropriate to put forward evidence of oral settlement discussions that occurred between legal representatives in the precinct of the Tribunal hearing venue (but not in the presence of the Member) on the first hearing day (10 November 2023).
2. Rules of evidence for do not apply in the Tribunal for this type of proceedings (ss 38(2)-(3) of the NCAT Act). However, common law evidentiary principles can be taken into account (see, for example, Beechwood Homes (NSW) Pty Ltd v Hassos [2023] NSWCATAP 184 at [129]).
3. At common law, evidence regarding 'without prejudice' settlement negotiations between parties or legal practitioners was, subject to certain exceptions, excluded from consideration. Dixon CJ, Webb, Kitto and Taylor JJ stated in Field v Commissioner for Railways for NSW [1957] HCA 92; (1957) 99 CLR 285 at 291-292:

"As a matter of policy the law has long excluded from evidence admissions by words or conduct made by parties in the course of negotiations to settle litigation. The purpose is to enable parties engaged in an attempt to compromise litigation to communicate with one another freely and without the embarrassment which the liability of their communications to be put in evidence subsequently might impose upon them. The law relieves them of this embarrassment so that their negotiations to avoid litigation or to settle it may go on unhampered. This form of privilege, however, is directed against the admission in evidence of express or implied admissions. It covers admissions by words or conduct. For example, neither party can use the readiness of the other to negotiate as an implied admission. It is not concerned with objective facts which may be ascertained during the course of negotiations. These may be proved by direct evidence. But it is concerned with the use of the negotiations or what is said in the course of them as evidence by way of admission. For some centuries almost it has been recognised that parties may properly give definition to the occasions when they are communicating in this manner by the use of the words `without prejudice' and to some extent the area of protection may be enlarged by the tacit acceptance by one side of the use by the other side or these words ...The question, however, does not depend altogether upon the expectations of the parties. It depends upon what formed part of the negotiations for the settlement of the action and what was reasonably incidental thereto."

1. Public policy dictates that, subject to certain exceptions, legal practitioners should be able to communicate freely between each other for the purpose of attempting to settle a dispute without fear that their words will be used against them later.
2. Section 131 of the Evidence Act 1995 (NSW) states:

131 Exclusion of evidence of settlement negotiations

(1) Evidence is not to be adduced of -

(a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute, or

(b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.

(a) the persons in dispute consent to the evidence being adduced in the proceeding concerned or, if any of those persons has tendered the communication or document in evidence in another Australian or overseas proceeding, all the other persons so consent, or

(b) the substance of the evidence has been disclosed with the express or implied consent of all the persons in dispute, or

(c) the substance of the evidence has been partly disclosed with the express or implied consent of the persons in dispute, and full disclosure of the evidence is reasonably necessary to enable a proper understanding of the other evidence that has already been adduced, or

(d) the communication or document included a statement to the effect that it was not to be treated as confidential, or

(e) the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute, or

(f) the proceeding in which it is sought to adduce the evidence is a proceeding to enforce an agreement between the persons in dispute to settle the dispute, or a proceeding in which the making of such an agreement is in issue, or

(g) evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence, or

(h) the communication or document is relevant to determining liability for costs, or

(i) making the communication, or preparing the document, affects a right of a person, or

(j) the communication was made, or the document was prepared, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty, or

(k) one of the persons in dispute, or an employee or agent of such a person, knew or ought reasonably to have known that the communication was made, or the document was prepared, in furtherance of a deliberate abuse of a power.

(3) For the purposes of subsection (2) (j), if commission of the fraud, offence or act is a fact in issue and there are reasonable grounds for finding that -

(a) the fraud, offence or act was committed, and

(b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act,

the court may find that the communication was so made or the document so prepared.

(a) the abuse of power is a fact in issue, and

(b) there are reasonable grounds for finding that a communication was made or document prepared in furtherance of the abuse of power,

the court may find that the communication was so made or the document was so prepared.

(a) a reference to a dispute is a reference to a dispute of a kind in respect of which relief may be given in an Australian or overseas proceeding, and

(b) a reference to an attempt to negotiate the settlement of a dispute does not include a reference to an attempt to negotiate the settlement of a criminal proceeding or an anticipated criminal proceeding, and

(c) a reference to a communication made by a person in dispute includes a reference to a communication made by an employee or agent of such a person, and

(d) a reference to the consent of a person in dispute includes a reference to the consent of an employee or agent of such a person, being an employee or agent who is authorised so to consent, and

(e) a reference to commission of an act includes a reference to a failure to act.

(6) In this section -

power means a power conferred by or under an Australian law

1. In this matter, both Owers-Brown, Nakkan, and the owners corporation have, by raising what was said in private oral settlement discussions (as distinct from written formal offers headed "without prejudice save as to costs" that make it clear the communication can be relied upon at the conclusion of the proceedings on the issue of costs) effectively waived privilege.
2. However, no weight can be given to this evidence.
3. The evidence cannot be tested. Different versions of what was said are not the subject of cross examination. Recollections may vary and are not supported by any written contemporaneous notes. Neither party seeks to cross examine the legal representatives on their recollections, nor would it be appropriate to grant leave to re-open if they sought to do so. The Tribunal is left with nothing more than disputed recollections.
4. Further, the parties had the opportunity to make formal written "without prejudice save as to costs" offers. It is the written offers that are to be given weight, not disputed recollections of oral settlement discussions that occurred over two years ago.

1. The offers of settlement by the parties does not alter the conclusion of the Tribunal that there should be no order as to costs, with each party to bear its own costs.

1. Even if the Tribunal's interpretation of r 38 of the NCAT Rules is wrong, and ss 60(1)-(3) of the NCAT Act applies to the issue of costs in these proceedings, it remains of the view expressed in the substantive decision at [575]-[579] that no party has established "special circumstances" against the other party such that a discretion should be invoked to award costs.

Section 104 of the Strata Schemes Management Act 2015 (NSW)

1. As discussed previously, in costs submissions Owers-Brown has sought that (a) she not have to contribute by way of levies to costs ordered to be paid to her by the owners corporation; and (b) she be 'quarantined' from contributing by way of levies to the costs incurred by the owners corporation in defending the proceedings.
2. The Tribunal has the power to make orders under ss 232 and 241 of the SSM Act to make orders that "settle a complaint or dispute" about any of the matters in s 232(1)(a)-(f) of the SSM Act. That power is not unlimited, and its ambit is discussed in The Owners-Strata Plan No 55468 v Silberstein [2025] NSWCATAP 102 at [111]- [117] and Coscuez International Pty Ltd v The Owners-Strata Plan No 46433 [2022] NSWCATAP 147 at [133]- [134].
3. Section 90 of the SSM Act states as follows:

90 Contributions for legal costs awarded in proceedings between owners and owners corporation

(1) This section applies to proceedings brought by one or more owners of lots against an owners corporation or by an owners corporation against one or more owners of lots (including one or more owners joined in third party proceedings).

(2) The court may order in the proceedings that any money (including costs) payable by an owners corporation under an order made in the proceedings must be paid from contributions levied only in relation to the lots and in the proportions that are specified in the order.

(3) The owners corporation must, for the purpose of paying the money ordered to be paid by it, levy contributions in accordance with the terms of the order and must pay the money out of the contributions paid in accordance with that levy.

(4) This Division (other than provisions relating to the amount of contributions) applies to and in respect of contributions levied under this section in the same way as it applies to other contributions levied under this Division.

1. In Liberant, the Appeal Panel held that the Tribunal had power under s 232 of the SSM Act to make an order of a type that reflects s 90(2) of the SSM Act in appropriate circumstances. However, no order has been made in these proceedings that the owners corporation pay damages or costs to Owers-Brown or Nakkan. Accordingly, it is unnecessary to further discuss s 90(2) of the SSM Act.
2. Section 104 of the SSM Act states as follows:

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. Neither Owers-Brown or Nakkan sought an order under ss 232 or 241 of the SSM Act to 'quarantine' levy contributions in accordance with s 104 of the SSM Act in the substantive proceedings. The orders that were sought are set out at [35]-[36].
2. The application by Owers-Brown included "any other order the Tribunal sees fit." However, that broad, generic reference is not identification of a specific order being sought.
3. The orders made by the Tribunal in the substantive proceedings gave the parties the opportunity to make an application to vary the costs order made. They did not refer to Owers-Brown being granted leave to make an application to seek an order that she not have to contribute by way of levies to the costs and disbursements incurred by the owners corporation in the proceedings. The late application for an 'quarantining' order is not an order ancillary to the variation of the costs order made in the substantive proceedings. It is a fresh application for an order. It is not appropriate at this late stage, in an application to vary a costs order, to grant leave to Owers-Brown to amend her claim and re-open the proceedings.
4. In The Owners-Strata Plan No 70871 v Turek [2022] NSWCATAP 83 at [30]- [32] (Turek) the Appeal Panel declined to make what is, in effect, an injunctive order under s 241 of the SSM Act that the owners corporation not levy the lot owner in respect of the legal costs incurred by the owners corporation in unsuccessfully defending proceedings. The Appeal Panel pointed out that s 104 of the SSM Act is operative, and unless levies have been imposed in contravention of s 104 of the SSM Act, or it is clear that such levies are going to be imposed, it is unnecessary and inappropriate to make an injunctive order that the owners corporation act in accordance with its legal obligations, or not breach its legal obligations.
5. In Liberant, the focus was upon whether the Tribunal has the power to make orders under s 232 of the SSM Act to settle a complaint or dispute that reflect the power of a court to make an order under s 90(2) of the SSM Act. The Appeal Panel stated that s 104 of the SSM Act is a "prohibition" on the owners corporation, not an "independent order making power" (Liberant at [112]-[113]). However, the Appeal Panel did not cavil with orders that had been made by the Tribunal at first instance that the owners corporation not levy the lot owner for payment of the owners corporation's legal costs, in circumstances where the Tribunal had awarded damages to the lot owner under s 106(5) of the SSM Act.
6. In The Owners Strata Plan No 74698 v Jacinta Investments Pty Ltd [2021] NSWCATAP 387 (Jacinta) the Appeal Panel stated at [176]-[179]:

In our view s 104 does not confer an order making power on the Tribunal: Vickery No 2 at [26]. It imposes on an owners corporation a prohibition on levying a lot owner in certain circumstances. Section 104 provides:

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.

The section mandates that "in respect of [the owners corporation's] costs and expenses":

(1) an owners corporation cannot levy a contribution on another party who is successful in the proceedings; and

(2) cannot pay any part of its costs and expenses from its administrative fund or capital works fund.

Rather, a special levy may be made for the purpose of paying those costs, the persons who can be levied to exclude the successful lot owner.

If an owners corporation acts in contravention of this provision, a dispute may arise enabling the Tribunal to make orders under s 232(1) to settle such a dispute by compelling an owners corporation to comply with the obligation imposed under s 104.

Absent such a dispute, the Tribunal has no power to make orders to enforce the obligation imposed by s 104.

1. However, the Appeal Panel went on to state at [201] that the Tribunal would has the power to make an order under s 232 of the SSM Act that reflects the owners corporation's obligation under s 104 of the SSM Act if there was a "dispute" and it was appropriate to do so. In The Owners Strata Plan No 74698 v Jacinta Investments Pty Ltd (No 2) [2022] NSWCATAP 11 the Appeal Panel stated at [52]-[54]:

"Jacinta seeks an order that it not be levied in connection with any costs order made in its favour against the Owners Corporation in respect of the proceedings at first instance and on appeal.

No submission was made in opposition to such an order. In any event, in our view it is appropriate to make such an order in the present case and we will do so.

Otherwise, s 104 of the SSMA operates in respect of the Owners Corporations costs of the proceedings at first instance and on appeal, Jacinta being overall successful in both proceedings."

1. However, in Jacinta, the lot owner was awarded 90% of its costs in the appeal.
2. In Selkirk v The Owners - Strata Plan No 2661 [No 2] [2024] NSWCATAP 44 (Selkirk) the Appeal Panel made a "notation" that the lot owner (Selkirk) was the successful party in the appeal, and that she should not be liable to contribute to the costs of incurred by the owners corporation in the appeal by way of levies. The Appeal Panel's reasoning is set out at [27]-[31] and [33]-[34]. The notation was based on an order that the owners corporation pay the lot owner's costs of the appeal proceedings other than 1 issue (which was not pressed) and a finding that the lot owner was "clearly" the successful party in the appeal.
3. However, Selkirk was the subject of a successful appeal to the Supreme Court (The Owners-Strata Plan No 2661 v Selkirk [2024] NSWSC 760). The 'quarantining' issue referred to by the Appeal Panel in the costs decision was not dealt with in the appeal.
4. The Appeal Panel does not regard Liberant; Jacinta; or Selkirk as authority for the proposition that it must make a 'quarantining' order under s 232 of the SSM Act when such an order is sought in a costs application; nor that it must make a notation if sought.
5. The difficulty in making a 'quarantining' order under s 232 of the SSM Act of a type identified in Jacinta is that as the order was not clearly sought in the substantive proceedings, and is not an ancillary order to the application to vary the costs decision, it is arguable on appeal that the Tribunal would have no power to make the order in these proceedings, notwithstanding s 38(1) of the NCAT Act, because such an order affects the substantive rights of the parties and is not procedural.
6. The difficulties in making a "notation" as occurred in Selkirk is that arguably it is obiter dicta such that it is not binding in the absence of a specific order; and that a "notation" is, at best, a finding, not an order that can be the subject of an internal appeal under s 80 of the NCAT Act. Appeal rights arise from orders, not findings in isolation to a specific order. The Appeal Panel referred to the relevant authorities in O'Brien v Women's Housing Company Limited [2026] NSWCATAP 3 at [193] as follows:

"An appeal is against orders, not reasons: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 at [34], Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 at [217], Kramer v Stone [2023] NSWCA 270 at [259]. In BP v State of New South Wales [2019] NSWCA 223, Meagher JA, Payne JA and McCallum JA stated as follows (at [11]-[12]):

In relation to the appellant's principal point, that he wishes to challenge the "finding" of the court below and the statutory construction underpinning it, it is axiomatic that parties are entitled to appeal from orders made and not reasons given: Driclad Pty Ltd v Federal Commissioner of Taxation [1968] HCA 91; (1968) 121 CLR 45 at 64; [1968] HCA 91 per Barwick CJ and Kitto J:

"... it is of the nature of appeals, as s. 73 of the Constitution recognizes, that they lie only against "judgments, decrees, orders and sentences", not against reasons. The word "judgments" in this connexion refers only to operative judicial acts, and is not used, as it often is in other contexts, as a convenient abbreviation for reasons for judgment."

The same point has been made on many occasions in this Court. See, for example, TriCare (Hastings) Limited v Allen [2015] NSWCA 344:

"[10] It is well established that a "judgment or order" in the context of s 101(1)(a) of the Supreme Court Act refers to an operative judicial act, i.e., the formal judgment or order which when entered is binding on the parties and definitive of legal rights: Driclad Pty Limited v Federal Commissioner of Taxation [1968] HCA 91; (1968) 121 CLR 45 at 64; and see the other authorities referred to by Campbell JA, with whom Handley AJA agreed, in Wang & Liu v State of New South Wales [2011] NSWCA 321 at [23] noting his Honour's observation that while error in a judgment or order might be demonstrated on an appeal by showing error in a judge's reasons for judgment, the appeal is against the judgment or order, not the reasons for judgment."

1. In circumstances where Owers-Brown did not seek an order under ss 232 or 241 of the SSM Act in respect of s 104 of the SSM Act in the proceedings until it was raised in costs submissions, and has not made any formal application to re-open its case, the Tribunal declines to make the order sought, or a notation. Further, the parties have not had the benefit of the reasoning in this costs decision, and it is not clear that the owners corporation will seek to impose levies on Owers-Brown and Nakkan in respect of the costs incurred by the owners corporation in these proceedings.
2. If the owners corporation imposes such levies, or clearly indicates that it intends to impose such levies, and Owers-Brown (and Nakkan) assert that is inconsistent with the owners corporation's obligations under s 104 of the SSM Act, Owers-Brown (and Nakkan) can take fresh Tribunal proceedings to seek an order of the type identified in Jacinta.
3. In regard to s 104(1) of the SSM Act, it is sufficient to observe that the provision refers to a party who "is successful in the proceedings". The provision does not state that a party must be completely successful. The Tribunal has found in this costs decision that both parties had substantial success against each other.
4. Considering the long and expensive history of disputation, the Tribunal makes similar comments to the comments it made in Turek that it would be regrettable if the parties are involved in a future dispute and Tribunal proceedings about the operation of s 104(1) of the SSM Act.

(1) A hearing is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

(2) The applications to vary the costs order in the substantive proceedings are dismissed.

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.