7 The application for leave seemed to lose significance. The plaintiff took the stance that its complaint with the judgment of the Magistrate concerned error in point of law. The defendants took the stance that the plaintiff was merely challenging findings of fact.
8 The Court has a discretionary power to grant an extension of time. It is exercised having regard to the relevant circumstances of the case before the Court and so that the dictates of justice are best served.
9 Generally speaking, the merits of the case, delay, explanation for delay and prejudice are agitated as the relevant considerations. The plaintiff bears the onus of satisfying the Court that an extension should be granted.
10 It is appropriate to first look at what the plaintiff has put in respect of the question of merits of the appeal. It was contended by the plaintiff that the Magistrate founded his judgment on the following:-
"(i) The difference between party/party costs judicially awarded and solicitor/client costs is not recoverable at law.
(ii) The Plaintiff was estopped from claiming the additional expenses, res judicata .
(iii) The Plaintiff's claim offended against the principles in Port of Melbourne Authority v Anshun Pty Limited (1980) 147 CLR 589 ("Anshun")."
11 The plaintiff made the following submissions:-
"26. At general law, it is accepted that although a successful party may be out of pocket with respect to some of its costs, the balance cannot be recovered in separate proceedings (see e.g. Bitannia Pty Limited v Parkline Constructions Pty Limited [2000] NSWCA 238 (28 August 2006) per Hodgson J. A. at paragraph 86).
27. This general principle must yield to the specific language of the Act.
28. The language of section 80 of the Act is clear. The interpretation of it by Cooper A. J. in Coshott at paragraph 80 is correct and should be followed. Were it otherwise the expression "expenses" would need to be qualified by appropriate language. It is not. His Honour's comments at paragraph 84 as to the construction of section 80(1) support the proposition that Anshun principles do not preclude an action for the extra expenses. In that case the Plaintiff contended that the owners' corporation was obligated by the words of section 80 to bring one action and one only for levies, interest and/ or expenses under the section. In rejecting that submission his Honour stated (at paragraph 84) " Indeed the very practicalities of the situation militate against the construction contended for by the present Plaintiff" .
29. The extra expenses over permitted party/ party (or, as here, statutorily regulated) costs cannot be known until after the matter is concluded by the obtaining of judgment and an order for costs. This makes it not unreasonable for the owners' corporation to sue for the additional expenses by separate proceedings. In those circumstances the additional expenses cannot be "so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it." see Anshun at p 602. Indeed, the extra expenses were still being incurred up until the moment of judgment and thereafter (for instance in the solicitor reporting on the proceedings).
12 The presentation by the plaintiff was somewhat unusual. During submissions in chief, the Court was not taken to the judgment of the Magistrate. Rather, there was a concentration on the judgment of Cooper AJ in Coshott v The Owners of Strata Plan No. 48892 [2006] NSWSC 308. The plaintiff contended that a materially identical question was determined in that case.
13 In Coshott, there had been a judgment recovered for contributions and an order for costs had been made. In the subsequent proceedings, it was sought to recover further legal costs as expenses. There were three categories of costs. One concerned costs that fell within the description of what has been referred to as "the gap".
14 There were other costs that had been incurred subsequent to the judgment. Cooper AJ dealt with all categories as being costs that had been ascertained after the first judgment. This was material to his findings on questions of estoppel.
15 The present case has distinguishable features. All of "the gap" costs had, by 23 August 2004, been incurred. It is contended by the plaintiff that it was not aware of the quantification of those costs until later. It was an argument that had been put before Longley LCM. It was an argument that he did not appear to accept. He took the view that the claim for these costs could have been pleaded in the earlier proceedings.
16 In my view, at least primarily, this case falls to be determined by the question of the proper construction to be given to s80 of the Act. It is in the following terms:-
"How does an owners corporation recover unpaid contributions and interest?
(1) An owners corporation may recover as a debt a contribution not paid at the end of one month after it becomes due and payable, together with any interest payable and the expenses of the owners corporation incurred in recovering those amounts.
(2) Interest paid or recovered forms part of the fund to which the relevant contribution belongs."
17 Section 80 forms part of Division 2 of Chapter 3 Part 3 (which also includes sections 78 and 79). Section 78 deals with the manner of levy contributions. Section 79 is headed "Interest and discounts on contributions". It deals with when a levied contribution becomes due and payable. It also deals, inter alia, with the question of interest on unpaid contributions.
18 It seems to me that s80 confers on an owners corporation a statutory right of action. The section enables the recovery by it (as a debt) of unpaid contributions as specified therein, together with any interest payable and the expenses of the owner's corporation incurred in recovering those amounts.
19 The Court was informed that "expenses" is not defined in the Act. This would appear to be so. It would appear to be intended to enable an owner's corporation to recover expenses other than legal costs (including expenses that might not otherwise be recoverable). It seems to me that the full ambit of the word is far from clear. Whether or not it was intended to encompass legal costs is not a matter that I have to determine in this case. It is common ground between the parties that "expenses" does include legal costs.
20 There is one express limitation on "expenses". The section restricts it to expenses incurred in recovering "those amounts" (being contributions and any interest payable).
21 In Coshott, Cooper AJ rejected a submission put by the plaintiff in that case concerning the words "together with" (see paragraphs 81 and 82). With respect, I prefer a different approach. In my view, the words are of significance. I consider that the section confers one right of action enabling the recovery of the two amounts and the related expenses and that it does not confer a right of action to recover "expenses" only. It seems to me to be essential that a claim is made for contributions I consider that this approach is supported by the language and context of the section and is consistent with what was said in the second reading speech (relevant passages from that speech have been recited in the judgment of Longley LCM). It seems to me that the intention was to ensure that if all of the claims are to be litigated that they should be litigated at the one time.
22 It seems to be common ground that before the Small Claims Division the plaintiff was seeking to recover monies relying on the statutory debt. It was open to the plaintiff, in those proceedings, to recover monies in respect of all of both of the two amounts and the related expenses and having chosen that forum it was the only avenue of relief to recover the expenses. It did not do so. It restricted its claim to the two amounts and costs (the costs being the limited costs that are recoverable in the Small Claims Division). It seems to me that the plaintiff has exhausted the statutory remedy had by it and which it litigated, in the Small Claims Division.
23 It may be added that the plaintiff could be regarded as the creator of its own problems. It chose to litigate in the Small Claims Division. It could have brought the proceedings in the General Division. Alternatively, it could have sought a transfer from the Small Claims Division to that division. If either of those courses had been taken, it could have sought an order for, inter alia, party/party costs.
24 In the light of what has been earlier said, it is my view that this appeal cannot succeed. In these circumstances, it is unnecessary to consider what was said on questions of estoppel.
25 If there has been error on the part of the Magistrate, it is my view that any such error does not justify the disturbing of his decision. It seems to me, that he reached the right result.