Roxy Pacific Killara Pty Ltd v The Owners - Strata Plan 10053 [2025] NSWCATAP 9 | Case summary

NCAT Appeal Panel|2025-01-08

REASONS FOR DECISION

On 16 September 2024, my decision in relation to the substantive proceedings, which was an appeal from Orders made by the Tribunal on 22 April 2024, was published (Roxy Pacific Killara Pty Ltd v The Owners - Strata Plan 10053 [2024] NSWCATAP 177).
Subsequently, the parties were invited to: 1. Make written submissions in relation to any application for costs in accordance with a set timetable. 2. Advise whether or not they consented to any costs' application being determined on the basis of the parties' written submissions, and attached documents, if any, without the need for a hearing.
In accordance with that timetable, Roxy Pacific Killara (Roxy) (the appellant) sought an order for the Owners Corporation (OC) (the respondent) to pay Roxy's costs of the appeal, as agreed or assessed, on the ordinary basis.
These reasons assume knowledge of, and should be read in conjunction with, my decision.

Dispensing with a hearing

Both parties consented to the costs' application being determined on the basis of the parties' written submissions without the need for a hearing.
Section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act") provides that an order may be made dispensing with a hearing if the Tribunal is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.
With regard to dispensing with a hearing on costs, the Appeal Panel in Murphy v Trustees Catholic Aged Care Sydney [2019] NSWCATAP 84 at [9]-[10] stated: 9. The guiding principle of the NCAT Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: NCAT Act, s 36(1). In addition, the practice and procedure of the Tribunal is to be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings: NCAT Act, s 36(2). Furthermore, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings: NCAT Act, 36(4): see Kurmond Homes Pty Ltd v Spiteri [2015] NSWCATAP 48. 10. The Tribunal has routinely considered applications for costs on the papers and without a hearing. We do not think it to be consistent with the guiding principle to have a further hearing in relation to costs. A further hearing would unnecessarily increase the costs of conducting the appeal. This would add further delay and further expense to what has already occurred. We consider it consistent with the guiding principles to determine the issue of costs on the papers.
I am satisfied that the same principles apply to this costs application and I will make an Order under s 50(1)(c) dispensing with a hearing on the issue of the costs of the appeal.

The Law

Section 60 of the NCAT Act applies generally to the payment of the costs of proceedings in the Tribunal. It provides that: (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.
However this appeal arises out of proceedings which were allocated to the Consumer and Commercial Division of the Tribunal. Rule 38 (2)(b) of the Civil and Administrative Tribunal Rules 2014 (the "NCAT Rules") provides that in proceedings allocated to that Division, then, despite s 60, the Tribunal may award costs in the absence of special circumstances if the amount claimed or in dispute in the proceedings is more than $30,000. Rule 38A provides that Rule 38 applies to an Appeal.

Summary of relevant history of the proceedings

In the hearing before the Tribunal member, the OC had sought Work Orders against Roxy to rectify alleged defects in building work and a Money Order for $11,101.75 for reimbursement of money spent by the OC to repair defects.
On 22 April 2024 the Senior Member found some of the work was defective and made a Money Order for $6,149. A timetable was set for the parties to formulate an agreed draft Work Order reflecting the Tribunal member's findings in relation to each defect. The parties did not comply with that order.
Roxy appealed from the Tribunal member's findings in relation to some of the defects. In the appeal, Roxy sought the following orders: 1. To set aside Order 2(a) made by the Tribunal on 22 April 2024 (which was the Order for the parties to formulate an agreed draft Work Order to reflect his findings); and 2. To replace Order 2(a) with a Money Order and a direction that within 28 days of the Order (or such other time as the parties may agree or the Tribunal may allow) the parties formulate an agreed draft Money Order to reflect the finding made in the Reasons.
I found: 1. There had been an error in the exercise of the discretion in s 48O and an error in the application of s 48MA of the Home Building Act 1989 (NSW) (the "HBA"). when determining whether a Work Order or a Money Order should be made. 2. Some written submissions made by Roxy had not been taken into account by the Tribunal when deciding whether the Work Order could be made jointly and severally against both Roxy and the builder who was the second respondent to the proceedings.
The parties agreed that, if an error was found, the matter should be remitted to the Tribunal to be redetermined.
On 16 September 2024 I made the following Orders: 1. The decision of the Tribunal in proceedings 2021/00371562, on 22 April 2024 is set aside. 2. The matter is remitted to the Tribunal to be determined according to law. 3. I do not limit the lodgement of new evidence which might be relied upon.

Consideration

As I have said, if r 38 applies, then there is no requirement to establish special circumstances for the making of a costs Order.
The first issue to be determined is whether the amount claimed or in dispute in the proceedings is more than $30,000 as this is a threshold requirement for the operation of the Rule.
Roxy submits that the amount in dispute is well in excess of $30,000. The appeal, inter alia, turned on whether the falls in the floors of 51 bathrooms had to be repaired. Its quantity surveyor estimated the cost of that repair was in excess of $200,000, and the total estimated rectification costs for major defective items was in excess of $500,000. Accordingly, it was submitted, there is a power to award costs even in the absence of special circumstances.
The OC submitted that r 38 did not apply because the amount in dispute was not more than $30,000. No Money Order had been made either by the Tribunal member or on Appeal.
Relevantly to this issue, Roxy sought leave to adduce expert evidence in relation to the cost of rectifying the bathrooms. I determined that I did not consider it necessary to consider this application in view of my findings.
Thus, although I accept that it is likely that the cost of rectification of 51 bathrooms will be expensive, I am not persuaded that there is any evidence before me on which I could determine whether the amount claimed or in dispute in the proceedings is more than $30,000.
Of course this evidence will be before the Tribunal to which the proceedings have been remitted. It will also have evidence of the various matters which Roxy says constitute special circumstances if s 60 of the NCAT Act falls to be considered.
I am accordingly satisfied that the question of costs of the appeal should be determined by the Tribunal to which these proceedings will be remitted.

Orders

I make the following Orders: 1. A hearing on costs is dispensed with pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013. 2. Remit the determination of the issue of the costs of the appeal, if pressed, to the Tribunal once the primary proceedings have been redetermined, with the admission of relevant new evidence on the issue of costs at the discretion of the Tribunal redetermining the matter. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 January 2025

Roxy Pacific Killara Pty Ltd v The Owners - Strata Plan 10053

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Judgment (6 paragraphs)

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