Selkirk v The Owners-Strata Plan No 2661 [2026] NSWCATAP 299 | Case summary | Zoe

NSWNSWCATAP

Selkirk v The Owners-Strata Plan No 2661

[2026] NSWCATAP 299

NCAT Appeal Panel|2026-09-18|Before: G Sarginson, Deputy President I R Coleman SC ADCJ, Principal Member

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2026-09-18

Before

G Sarginson, Deputy President I R Coleman SC ADCJ, Principal Member

Catchwords

COSTS – Appeal from costs decision – s 60 Civil and Administrative Tribunal Act 2013 (NSW) - r 38(2)(b) Civil and Administrative Tribunal Rules 2014 (NSW) – parties successful on different issues – proportionate costs order – exercise of discretion

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Catchwords

COSTS – Appeal from costs decision – s 60 Civil and Administrative Tribunal Act 2013 (NSW) - r 38(2)(b) Civil and Administrative Tribunal Rules 2014 (NSW) – parties successful on different issues – proportionate costs order – exercise of discretion

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Selkirk v The Owners-Strata Plan No 2661 [2026] NSWCATAP 299

Hearing dates: 23 July 2026

Date of orders: 18 September 2026

Decision date: 18 September 2026

Jurisdiction: Appeal Panel

Before: G Sarginson, Deputy President
I R Coleman SC ADCJ, Principal Member

Decision: (1) Leave to appeal is refused
(2) Appeal dismissed
(3) Costs of the appeal are reserved
(4) A party seeking an order for costs is to file and serve written submissions not exceeding 7 pages in length in support of such application within 21 days of the Appeal Panel’s decision (5) A party resisting an application for costs is to file and serve written submissions not exceeding 7 pages in length in opposition to such application within 42 days of the date of the Appeal Panel’s decision (6) Any reply to submissions, not exceeding 3 pages in length, are to be filed and served by 49 days of the date of the Appeal Panel decision (7) An issue to be addressed in the costs submissions is whether the parties consent to the issue of costs of the appeal being determined on the papers in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) and if not, why not

Cases Cited: ABC Insurance Pty Ltd v Law Society of New South Wales [2025] NSWCA 182
Agripower Barraba Pty Ltd v Blomfield [2015] NSWCA 30; (2015) 317 ALR 202
Akins v National Australia Bank [1994] 34 NSWLR 155
Amirchian v The Owners – Strata Plan No 99357 [2023] NSWCATAP 286
Bostik Australia Pty Ltd v Liddiard (No. 2) [2009] NSWCA 304
Bowen Investments v Tabcorp Holdings Ltd (No. 2) [2008] FCAFC 107
CDJ v VAJ (1998) 197 CLR 172 [1998] HCA 67
Collins v Urban [2014] NSWCATAP 17
Commonwealth of Australia v Gretton [2008] NSWCA 117
Edwards v Noble (1971) 125 CLR 296 [1971] HCA 54
Elite Protective Personnel Pty Ltd & Anor v Salmon (No. 2) [2007] NSWCA 373
Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v R (1936) 55 CLR 499 [1936] HCA 40
Hungerford v Walker (1989) 171 CLR 125; [1989] HCA 8
John Anthony Arena Pty Ltd v Franpina Developments Pty Ltd [2022] NSWCA 139
Kudrynski v Orange City Council [2024] NSWCA 33
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
McNeill v Clarence Valley Council [2025] NSWCATAP 184
Murabito v Commissioner for Fair Trading (No. 2) [2020] NSWCATAP 135
New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231
Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin & Anor (No. 2) [2021] NSWCA 98
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Phillips v The Queen (1985) 195 CLR 45; [1985] HCA 79
Ros v Commissioner of Police [2020] NSWCATAP 70
Selkirk v The Owners - Strata Plan No 2661 [2024] NSWCATAP 17
Selkirk v The Owners-Strata Plan No 2661; The Owners-Strata Plan No 2661 v Selkirk [2026] NSWCATAP 211
State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283
SZTOG v Minister for Immigration & Border Protection [2018] FCA 112
The Owners – Strata Plan No 2661 v Selkirk [2024] NSWSC 760
Ugur v Commissioner of Police [2023] NSWCATAP 261
Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204
YBC v YJC [2024] NSWCATAP 221
Yeh v Bazdaric Homes Pty Ltd (No. 2) [2025] NSWCATAP 146
ZND v ZNE [2020] NSWCATAP 34
ZNX v ZNY [2020] NSWCATAP 41

The proceedings at first instance commenced with the determination of contested proceedings between the parties pursuant to the provisions of the Strata Schemes Management Act 2015 (NSW) (SSMA) on 15 August 2023 (Tyson SM). The lot owner sought various orders, including (but not limited to) orders for repair to common property under s 232 of the SSMA, and damages under ss 106(5) and 232 of the SSMA. The Tribunal dismissed the proceedings. Those proceedings are summarised in Selkirk v The Owners-Strata Plan No 2661; The Owners-Strata Plan No 2661 v Selkirk [2026] NSWCATAP 211 at [9]-[12].
The Appellant successfully appealed against the Tribunal’s decision in respect of issues of repair to common property and the award of damages, and, on 6 February 2024, the Appeal Panel remitted the proceedings for re-hearing (Selkirk v The Owners - Strata Plan No 2661 [2024] NSWCATAP 17). Those proceedings are summarised in Selkirk v The Owners-Strata Plan No 2661; The Owners-Strata Plan No 2661 v Selkirk [2026] NSWCATAP 211 at [19].
The Respondent appealed to the Supreme Court of New South Wales. On 21 June 2024, the Supreme Court allowed the Respondent’s appeal (The Owners – Strata Plan No 2661 v Selkirk [2024] NSWSC 760), and the proceedings were remitted back to the Tribunal. Those proceedings are summarised in Selkirk v The Owners-Strata Plan No 2661; The Owners-Strata Plan No 2661 v Selkirk [2026] NSWCATAP 211 at [22] and [104]-[112].
On 30 December 2024, the Tribunal made the decision in the remitted proceedings which gave rise to the appeal, which was heard by the Appeal Panel on 2 June 2025, and dismissed on 15 April 2026 (Selkirk v The Owners-Strata Plan No 2661; The Owners-Strata Plan No 2661 v Selkirk [2026] NSWCATAP 211).
The costs decision of 27 February 2026 was made in respect of the substantive proceedings determined by the Tribunal on 30 December 2024.
At the hearing of the present appeal, the parties confirmed that they accepted that the appeal is determined by reference to the undisturbed findings of fact of the Tribunal of 30 December 2024.
Albeit decided after the costs decision of 27 February 2026, the parties accepted that the procedural history and factual background recorded in the Appeal Panel decision of 15 April 2026 provides the factual background to the present appeal.
Given the basis and reasons for the costs decision of 27 February 2026, it is helpful to recite the factual background recorded in the Appeal Panel’s decision with respect to the substantive proceedings of 15 April 2026.
In its reasons, the Appeal Panel recorded at [26]-[47]:

The Tribunal recorded [1] that, in its decision in the substantive proceedings of 30 December 2024 orders were made allowing the parties to make submissions concerning the costs of the proceedings, including the costs of the proceedings which were delivered on 15 August 2023 and the costs order made in those proceedings on 27 October 2023, which orders were subsequently set aside by the Appeal Panel.
Although the Appellant challenges the result of doing so, the Appellant does not suggest that the Tribunal erred by determining the costs of both hearings of the substantive proceedings.
The Tribunal then set out the background to the proceedings. It is unnecessary in view of earlier paragraphs in these reasons to restate those paragraphs in the reasons of the Tribunal at first instance. The Tribunal held [18] that the question of costs could be adequately determined on the basis of the written submissions filed by the parties and without a hearing and accordingly considered it appropriate to make an order pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) dispensing with a hearing. No part of the present appeal involves any challenge to that order.
Under the heading “Relevant statutory provisions,” the Tribunal recorded [19] the terms of s 60 of the CAT Act. The Tribunal also recorded [20] the provisions of Rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules) which provides an exception to the principles articulated in s 60 of the CAT Act.
The Tribunal recorded [21] the Appellant’s submission that as Rule 38(2)(b) of the Rules applied (i.e. the amount claimed or in dispute in the proceedings exceeded $30,000), it was not necessary to find special circumstances before the discretion to make an order for costs could be enlivened. The Tribunal recorded that the Respondent’s submissions “contained no explicit acknowledgement that Rule 38 applied to these proceedings, however, it is implicit in its submissions that it accepts that Rule 38 is applicable”.
It has not been suggested that the Tribunal misconceived the parties’ positions in relation to the application of Rule 38(2)(b). Although the Appellant’s grounds of appeal contend that the Tribunal at first instance misapplied Rule 38(2)(b), it is not asserted that the Tribunal erred in finding that the Rule applied. Although the Respondent disputes that the Tribunal misapplied Rule 38, there is nothing in the submissions or any cross appeal by which the Respondent disputed that Rule 38(2)(b) did apply.
The Tribunal recorded at [22]-[26] that the Appellant relied on the decision of the Court of Appeal in Bostik Australia Pty Ltd v Liddiard (No. 2) [2009] NSWCA 304 (Bostik) in support of the proposition that:

The Appellant was recorded at [39] as having contended that she was “wholly successful” in the proceedings despite not obtaining the exact orders she sought, as she had been awarded substantial damages and work orders. The Appellant’s submission was that “two work orders were in fact made. They may not have been the exact work orders sought by the Applicant, but they cannot simply be ignored by the Respondent. Further, Mr White’s evidence was not only relevant to the works order, but to the question of damages … it was directly relevant to the determination of whether the Auseal works would have been sufficient to remedy the breach of s 106(1) of the [SSMA] which was the primary defence ran by the Respondent (and rejected by the Tribunal)” [40].
The Tribunal recorded at [41] the Appellant’s response to the Respondent’s submissions with respect to her alleged misconduct, the most significant of which was that the “events of 4 September 2023 clearly did not cause any material change in the position of the Respondent, as it always refused to do anything more than the Auseal works”.
The Tribunal recorded at [42] the Appellant’s contention that the unexplained impact of any “tendency to untruthfulness” on her part had caused any material impact on the conduct of the proceedings.
Under the heading “Consideration” the Tribunal revealed the process of reasoning which led to its decision. The Appellant was found at [43] not to have been “wholly successful in the proceedings”, or have established that the issues on which the Appellant did not succeed were “peripheral or unsubstantial”. It was thus found to be necessary to consider how the orders in respect of the costs of the proceedings should be fashioned in order to reflect the parties’ respective success and the time taken in dealing with issues on which the Appellant was unsuccessful.
The Tribunal at [44] referred to the reasons of the Court of Appeal in Bostik at [38]. It is not in issue that the reference to Bostik was appropriate. It was there held at [38] that (citations omitted):

The Tribunal determined at [45] that it was appropriate to consider the costs of the “initial stage” of the proceedings before dealing with the costs of the remittal hearing. As discussed previously, either party contends that such approach was erroneous.
Under the heading “Initial stage of proceedings up to the hearing before Senior Member Tyson” the Tribunal found that two “substantial elements” of the proceedings which had been the subject of the 2023 decision “were no longer raised by the proceedings on remittal”, they being the claim by the Appellant for relief from fees and interest, and the Appellant’s claim for orders relating to a neighbouring Lot owner’s hard floors.
The Tribunal recorded at [49] that in the first determination of the substantive proceedings the parties agreed that an appropriate order was that the Appellant pay 85% of the Respondent’s costs of the whole proceedings. The Tribunal found at [50] that the submissions of the Appellant concerning the costs of the proceedings up to the initial hearing “proceeded upon an erroneous interpretation of rule 38”.
The Tribunal found, [51] that Rule 38(2)(b) “applies to proceedings, not separate claims in proceedings” and that, once it was determined that Rule 38 applied to the substantive proceedings it was “not necessary to find special circumstances before awarding costs in respect of any claim raised in the proceedings as initially formulated”. As the initial decision in the substantive proceedings had been set aside the Tribunal thus considered that it was not prevented from approaching the application of Rule 38 in the correct manner.
The Appellant was found at [52] to have been “ultimately the successful party in the proceedings in the sense that she obtained orders which were not on offer from the Respondent (albeit that to some degree the orders made were founded upon concessions made by the Respondent). The Respondent maintained the position throughout the hearing that the [Appellant] was entitled to no compensation in respect of the Respondent’s breach of s 106 by reason of the [Appellant’s] obligation to indemnify the Respondent in respect of any liability arising from the [Appellant] engaging in short term letting. The Respondent failed in that submission.” The Appellant however was found at [53] to have been “not wholly successful, and she was unsuccessful in some substantial respects, including her claim for a work order requiring the full rectification of the bathroom”. The Tribunal referred to its findings in the substantive proceedings of 30 December 2024, which recorded:

The Tribunal observed that the orders which it made on 30 December 2024 were “founded on concessions made by the Respondent”, and that, accordingly, it could not be said that the “Applicant was obliged to maintain the proceedings in order to obtain those orders”.
The Tribunal held at [54] that to award the Appellant 85% of the costs of the first determination of substantive proceedings was a “reliable measure of the proportion of the costs to that stage which were referable to the (Appellant’s) s 106 claim.” The Tribunal further found at [55] that the Appellant’s claim pursuant to s 106 of the SSMA for compensation and work orders was, apart from the Respondent’s unsuccessful attempt to resurrect the proceedings it had brought against the Applicant, which occupied negligible time and costs, the only claim before the Tribunal at the remitted hearing. The Tribunal accordingly found at [56] that the costs of the initial hearing “to the extent they were referable to the Applicant’s s 106 claim, should be regarded, and dealt with, in the same manner as the costs of the remitted hearing”.
Accordingly, the Tribunal would “consider the appropriate order in this regard after considering the appropriate order in respect to the costs of the remittal hearing.” With respect to the costs of the remittal hearing, after recording the thrust of the parties’ submissions the Tribunal rejected at [58] the Appellant’s contention that the discretion to make a proportional costs order was enlivened. The Tribunal reiterated at [58] that the “principles outlined in Bostik are applicable wherever different parties achieve success on distinct or separable issues”, and permitted the Tribunal to award costs by reference to the parties’ success or failure on distinct or separable issues in an appropriate case.
The Appellant was found at [59] to have been successful in the proceedings in that she recovered compensation in respect of her loss of income as a consequence of the Respondent’s breach of s 106, but not in the amount claimed or for the whole period in respect of which such compensation was claimed. The Tribunal found that the Appellant had been “unsuccessful on two very substantial issues”:

In her written submissions, the Appellant submitted that the “wrong legal test was applied” by the Tribunal at first instance. The Tribunal recognised the relevant principles as articulated in Bostik. The issue is whether, in the exercise of the discretion the Tribunal erred in one or more of the ways identified in House. In order to succeed with her appeal, it is necessary for the Appellant to demonstrate that the Tribunal’s discretion miscarried on one or more of those bases.
With no disrespect to the Appellant intended, the aide-memoire introduced by her at the hearing of the appeal engages more effectively than her written submissions with what is in reality the substance of this ground.
In her aide-memoire, the Appellant identified seven issues which were submitted to have not been considered, or to have been erroneously considered. Issue one was described as “during what period or periods between December 2020 and June 2024 was the (Appellant’s) unit uninhabitable as a result of the owners failure to repair and maintain the common property of Strata Plan No 2661 in breach of s 106(1) of the SSMA?” The Appellant referred to the reasons for the decision of the Tribunal of 30 December 2024 at [171(1)] in respect of which the Appellant asserted that she had been successful. It was accordingly submitted that there was no “principle basis identified” by the Tribunal for any discount in relation to that issue.
The second issue identified by the Appellant “What loss has the [Appellant] established that she sustained by reason of the uninhabitability of her unit during the period or periods identified?,” which the Tribunal identified at [171(2)] of its reasons was, the Appellant submitted, an issue in respect of which she had been successful and that, accordingly, that no “principled basis” had been identified for discounting her costs. That was submitted to have been “coloured” by the seventh issue which the Appellant identified.
The third issue (3(a)) identified by the Appellant was:

– the “Lease Issue” introduced by the Respondent” was identified by the Tribunal at [171(3)(a)] of its reasons of 30 December 2024.
The Appellant submitted that the Respondent “FAILED – defence rejected in full” as evidenced by paragraph [217] of the Tribunal’s substantive decision of 30 December 2024. The Appellant asserted that this was “treated as a significant basis for the 40% global discount, via the adverse credibility finding wrongly extended beyond its scope” referring to paragraphs [61] and [63] of the reasons for the costs decision.
The fourth issue (3(b)) identified by the Appellant was “Whether the likelihood that the Appellant would have engaged in short term letting in breach of special by-law 4 is otherwise relevant to the assessment of compensation” which the Tribunal identified at [171(3)(b)] in its decision in the substantive proceedings. The Appellant submitted that the Respondent “FAILED – defence rejected in full: substantive decision [217]”. The Appellant reiterated her submissions with respect to 3(a), submitting that this had been “imported into the discount despite the underlying defence failing”, again with reference to [61] and [63] of the costs decision.
The fifth issue identified by the Appellant (numbered 4 on the aide-memoire) was “Whether the [Appellant] should be “quarantined” from paying any share of the liability of the owners to the Appellant”. This was identified by the Tribunal at [171(4)] of the substantive decision. The Appellant submitted that she had been successful which was not disputed by the Respondent. Under the part of the aide-memoire headed “Costs treatment (to be tested),” the Appellant did not suggest how that success had been taken into consideration to her detriment in relation to costs. It is unnecessary to refer again to this issue.
The sixth issue (numbered 5 on the aide-memoire) identified by the Appellant was “Should the owners be directed to carry out work to rectify the common property in the [Appellant’s] Lot and if so, what should be the scope of works and should the scope of works extend to the kitchen of the [Appellant’s] Lot?” The Tribunal identified this issue at [171(5)] of the reasons for its decision dated 30 December 2024. The Appellant submitted that she had been successful with respect to that issue and that her costs had been discounted with “no principle basis identified – coloured by issue six.”
The seventh issue (numbered 6 on the aide-memoire) identified by the Appellant was “Whether the owners’ application remains on foot and in any event whether the owners should be permitted to maintain that application at this hearing and, if so, what order should be made? – the s 132 exposure issue”. The Appellant submitted that this issue had been “NOT addressed/NOT determined – Robertson (sic) found only “exposure” to the making of an order (substantive decision [201]-[206]); no s 132 application has ever been determined against the Appellant in the substantive decision at [258]-[259]”. The Appellant submitted that “an undetermined exposure has nonetheless coloured the costs discretion – An issue that was never determined against the Appellant cannot properly do the work of justifying costs discount” (again referring to [61] and [63] of the costs decision).
The Respondent submitted that the Appellant’s contention was that she had been successful on the only “true” issues in the proceedings, and therefore should recover her costs in their entirety. It was submitted that the authorities identified by the Respondent in relation to success with respect to causes of action “ makes clear that the Tribunal had a discretion to craft an appropriate costs order reflecting the success of the parties on different issues.
In oral submissions, when dealing with the contents of the Appellant’s aide-memoire, it was not disputed that the Appellant had been successful to the extent that she asserted but was submitted that, as the findings of the Tribunal in the substantive decision confirmed, the inferences drawn in reliance upon those findings in the costs determination were reasonably open to the Tribunal and were not “wrong.” The Respondent did not dispute that the Appellant had been successful in relation to her claim that, due to the Respondent’s breach of s 106(1) of the SSMA her Lot had been uninhabitable between December 2020 and June 2024.
The Respondent submitted that the decision of the Tribunal at first instance “represents an orthodox and appropriate exercise of the discretion in accordance with principle and authority which should not be disturbed by the Appeal Panel.” It was further submitted to be “entirely in accordance with principle and authority to look beyond, as the Tribunal below did, the mere fact that (the Appellant) obtained a measure of relief in relation to the cause of action she asserted. The modest extent of that relief and the findings against her interest on key issues of fact and law which led to the suboptimal result are reflected in the costs order made.” It was further submitted, in reliance on the decision in Commonwealth of Australia v Gretton [2008] NSWCA 117 per Hodgson JA, at [121] to be consistent with notions of fairness having regard to what the Tribunal considers to be the responsibility of each party for the incurring of costs.
The Respondent submitted, by reference to the decision in Bostik and the decision of the Appeal Panel in Yeh v Bazdaric Homes Pty Ltd (No. 2) [2025] NSWCATAP 146, that the factors which might influence whether the usual order that costs follow the event should apply include, whether, by reason of the relative success of the parties on different issues, and the time taken to determine those, that an order for costs based on issues should be made. The Respondent relied significantly on the statement by the Court of Appeal in Bostik that:

Although the Appellant is a legal practitioner, and as submitted by Counsel for the Respondent, her documents have been filed by a law firm, the Appellant is not represented by another Solicitor or Counsel in this appeal. We have adopted, in the particular circumstances of this appeal, the “more generous or benevolent approach” to her grounds of appeal discussed by the Court of Appeal in Kudrynski v Orange City Council [2024] NSWCA 33*,* and have focused on the substance of the Appellant’s appeal issues (YBC v YJC [2024] NSWCATAP 221*)*.
We acknowledge that there are limits to any ‘benevolence.’ One is procedural fairness. Another is that, generally, it is not the role of the Appeal Panel to create, of its own volition, a ground of appeal where none is advanced in substance (ZNX v ZNY [2020] NSWCATAP 41 at [29], citing Flick J in SZTOG v Minister for Immigration & Border Protection [2018] FCA 112 at [30]).
Although not expressly pleaded or advanced in oral submissions, in view of the Appellant’s aide-memoire and her submissions in relation to it, the thrust of this ground appears to be, adopting the language of the High Court in House, that, by assertedly making findings which were inconsistent with the undisturbed findings made in the determination of the substantive proceedings on 30 December 2024, the Tribunal at first instance mistook the facts.
Further, or in the alternative, in substance the Appellant contends that the Tribunal failed to have regard to relevant facts or circumstances, and had regard to irrelevant facts or circumstances, or further in the alternative, that, although the error may not otherwise be demonstrable, by affording excessive weight to factual circumstances supporting the Respondent, and affording insufficient weight to facts or circumstances supporting her case, the Tribunal reached a decision which was plainly unjust.
In our view, some of those grounds involve issues that require leave to appeal, as distinct from errors on a question of law that do not require leave. The respondent has had, in our view, a reasonable opportunity to meet the issue of whether leave to appeal should be granted for the grounds that do not involve an error on a question of law.
To evaluate the Appellant’s challenges, it is necessary to have regard to the undisturbed findings of the Tribunal in its substantive decision of 30 December 2024. The Appellant referred to the reasons at [217].
The Tribunal there rejected “the (Respondent’s) submission that the effect of clause 1.8 of special by-law 4 is that the [Appellant] must indemnify the owners in respect of any losses attributable to short term letting, so that no compensation is payable in respect of periods when the premises would have been let on short term tenancies, contrary to special by-law 4”.
As submitted by the Respondent, there was rather more of significance to this issue than that finding, as [218] of the Tribunal’s reasons confirms. It was there recorded that “The issue for determination is what chance has the [Appellant] lost of letting the premises on a long term basis or for substantial lengths of time during the period from December 2020 to September 2023.” The Tribunal found at [221] that the Appellant:

Contrary to the Respondent’s case, the Tribunal at [229] did not accept that the market rental values should be discounted by $100 per week to allow for the absence of car parking. The Tribunal did not accept [233] that the amount paid by the Appellant to Waters Edge in respect of the “invasive investigation” constituted a loss suffered by the Appellant as a result of the Respondent’s breach of s 106(1) of the SSMA, such costs having been “incurred by the [Appellant] in the course of her undertaking work on common property without property authority”.
The Tribunal rejected [234] the Appellant’s claim for compensation for the loss of use of the money the subject of her claim for lost rent in accordance with the principles in Hungerford v Walker (1989) 171 CLR 125; [1989] HCA 8. The Tribunal recorded at [236] that the Appellant had “failed to lead any evidence of any such additional interest or other costs”, and [237] “Even if I were prepared to accept the uncorroborated evidence of the [Appellant] I would not have given this evidence any weight in the absence of supporting documentation, which clearly should have been available”.
As the Tribunal’s reasons in its substantive decision confirm, although the Appellant was successful in relation to issue 1 listed in her aide-memoire, she was significantly unsuccessful in relation to the issues listed as 2, 3(a) and 3(b) in the document. As recorded earlier, and is not controversial, the Appellant’s success with respect to the issue numbered 4 in her aide-memoire did not feature, or was “neutral” in the reasons for the Tribunal’s costs decision.
The Tribunal’s reasons in the substantive decision with respect to the issue numbered 5 in the Appellant’s aide-memoire do not support contentions. In its decision, the Tribunal recorded with respect to issue 5, that the Appellant’s assertion that she was “successful” overlooked the findings of the Tribunal in its determination of the substantive proceedings.
Relevantly, the Tribunal there found, at [250] that the Respondent conceded that it was appropriate to make an order requiring the owners to “meet the cost of rectifying the brickwork to a level necessary to enable reinstatement of the internal cladding”: The Tribunal further found that:

The Appellant referred to the reasons for the decision in the substantive proceedings at [258]-[259]. The Tribunal recorded, at [258] that the orders of 23 February 2024 “involve the dismissal of the owners’ proceedings”, that, even if that had been erroneous, the Tribunal as then constituted had no power to correct that error and, at [259] that if the Tribunal had power to reinstate the owners’ proceedings, it would not exercise that power.
In its decision in the substantive proceedings, the Tribunal ultimately concluded at [263] that it was unnecessary to make any order in relation to the owners’ proceedings as they had been dismissed, and the owners had not lodged any formal application seeking to “overcome or reverse that dismissal”.
The Appellant’s contentions in her aide-memoire in the column headed “Costs treatment (to be tested)” all assert that the matters identified with respect to issues numbered 1 to 6 impacted upon the Tribunal’s costs decision. The Appeal Panel accepts that they did.
The reasons of the Tribunal for the costs decision, the adequacy of which has not been challenged (New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231) identified with respect to both the first substantive hearing and the substantive hearing on remitter, the issues in respect of which the parties were successful or unsuccessful. None of the findings there recorded has been shown to have been inconsistent with any of the findings made by the Tribunal in its decision of 30 December 2024. As is not in doubt, this appeal is not an opportunity to re-agitate any of those findings.
The Appellant has not identified any fact or circumstance to which the Tribunal had regard which was not relevant to the exercise of its discretion. Nor has the Appellant identified any relevant fact or circumstance to which the Tribunal did not refer. In reality, the Appellant contends that the Tribunal should have afforded the factors favouring her case more weight than it evidently did and/or afforded the factors which assisted the Respondent’s case less weight than it inferentially did.
As is clear from the Judgment of the Court of Appeal in Bostik, the Tribunal exercised a broad discretion. The Court of Appeal accepted in Bostik that departure from the ordinary rule may be appropriate where a particular issue or group of issues is “clearly dominant or separable.” The Tribunal at first instance relied on the latter category of issues. The Tribunal clearly considered the outcome of the issues numbered 1 to 6 in the Appellant’s aide-memoire, which had been determined in the substantive decision of 30 December 2024 as constituting separate issues.
In Bostik, the Court of Appeal accepted that it may be appropriate to deprive a successful party of a “portion of the costs” if the matters upon which the party was unsuccessful took up a significant part of the trial, whether by way of evidence or argument. The Court accepted that every case turns on its particular facts and circumstances viewed against the “wide discretionary powers of the court, which powers should be liberally construed.” The Court of Appeal confirmed that a “separable issue” can relate to any disputed question of fact or law before a Court on which a party fails,” notwithstanding that the party was otherwise successful in terms of the ultimate outcome of the matter. The Court of Appeal reiterated that 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 a discretion depends upon matters of impression and evaluation.”
The Tribunal did not, and was not obliged, to quantify any “discount” in the Appellant’s entitlement to costs by reference to particular issues. Provided that, which has not been established, the weight given or not given to relevant facts and circumstances was not so excessive or so insufficient as to enliven the last limb of House, appellate intervention is unwarranted. The Tribunal may have afforded the Appellant’s success with respect to separate issues more weight than it did, and/or afforded the Respondent’s success with respect to separate issues than it did, but that is not the test.
The Appeal Panel finds no error on any of the bases expressly pleaded in ground 1, or in submissions in support of the ground or emerging from the Appellant’s aide-memoire, or her oral submissions at the hearing. On no recognised legal basis has the Appellant demonstrated that the Tribunal’s discretion miscarried.

The Appellant relied on the finding of the Tribunal at first instance at [61] that “the false document issue did not extend the remittal hearing beyond the allocated day”. It was submitted in reliance upon Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59, and Oikos Constructions Pty Ltd v Ostin (No. 2) [2021] NSWCA 98 that misconduct is relevant to costs “only to the extent it caused the other party to incur additional costs”. That submission does not gain support from the decision in Oikos. In any event, in at least one respect, on which the Tribunal placed some reliance, the Appellant’s misconduct caused the Respondent to incur additional costs.
In Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin & Anor (No. 2) [2021] NSWCA 98 after referring [14] to Bostik and Elite Protective, White JA, with whom Basten and Macfarlan JJA agreed, said that a successful party (citations omitted) “may be denied the whole of its costs, or may be required to pay costs in respect of its failure on particular issues, even though that party did not act unreasonably in raising or defending the issues on which it failed”.
By reference to the decision in Bowen Investments v Tabcorp Holdings Ltd (No. 2) [2008] FCAFC 107, White JA accepted at [16] that “If an issue by issue approach produces a result that is fairer than giving the successful party all of his or her costs, notwithstanding his or her failure on particular issues, then the issue by issue approach should be adopted”. His Honour accepted at [20] that the “kind of mathematical precision” for which the respondents contended, was “illusory”. White JA further observed at [28] that “Once it is decided that an otherwise successful plaintiff has failed on a severable or dominant issue such that it is not appropriate that the plaintiff receive all of his or her costs, in deciding how the discretion as to costs should be exercised to achieve fairness … the perspective of both parties should be considered”. His Honour found that “On balance Oikos had more success than did the respondents. This should be reflected in the costs orders.” His Honour further observed [29] that:

The Appellant submitted that a “global 40% discount where the decision maker himself found zero prolongation applies the wrong legal principle” and allows an “extraneous consideration to drive the result”. It was submitted that the Respondent’s by-law 4/indemnity defence, the “vehicle through which the false document became central” was itself rejected entirely in the substantive decision at [217]. It was accordingly submitted that a “failed defence that caused no additional hearing costs cannot attract a large global penalty against the successful party.”
Under the heading “Credibility finding impermissibly applied beyond its scope”, it was submitted that, in reliance upon Phillips v The Queen (1985) 195 CLR 45; [1985] HCA 79, at [15], “credibility evidence confined to questions touching the witness’ credibility on the specific matter in question, not broader unconnected conclusions (Fox v Percy (2003) 214 CLR 118, Zoneff v The Queen (2000) 200 CLR 234)” precluded the Tribunal at first instance discounting the Appellant’s entitlement to costs on that basis. It was submitted that the decision of the Tribunal involved “weaponizing adverse credibility findings to justify a discount” and was erroneous.
With respect to the Appellant, no finding made by the Tribunal in its costs decision turned on credibility findings other than the reference to “misconduct” in respect of the “false” written residential tenancy agreement referred to at [61] of the Tribunal’s reasons. The Tribunal’s reliance in the costs proceedings on findings made by the Tribunal in its substantive decision of 30 December 2024 which may have been informed by, or in reliance on credit findings in those proceedings involved no erroneous reliance on credibility in the Tribunal’s costs decision.
The Appellant further submitted under the heading “Onus of proof reversed – Amirchian error” the Appellant referred to the finding in the substantive decision at [212] that requiring the owners to obtain tenancy agreements “seeks to reverse the onus of proof”. That was submitted to have been an error of law and contrary to the decision in Amirchian v The Owners – Strata Plan No 99357 [2023] NSWCATAP 286 (A**mirchian). Amirchian was submitted to be authority for the proposition that “a prima facie case of intention to rent is accepted unless contradicted by the Respondent. The onus to rebut lies on the OC.” The Appellant had the opportunity to challenge that finding in her unsuccessful appeal against the substantive decision of 30 December 2024, and cannot re-agitate it now in the appeal from the costs decision. Nothing to which the Appellant has referred advances her onus of proof reversal contentions.
Under the heading “The double penalty effect” the Appellant submitted that the “erroneous credibility and onus approach produced a cascading double penalty” that was submitted to have been “first, a 50% reduction in the substantive damages award” and “second, the same erroneous 50% characterisation of “success” was mechanically imported into the costs order, producing a further halving of costs recovery”. The Appellant submitted that she had accordingly been “penalised twice for the same legally erroneous exercise.”
As is apparent from its terms, the Appellant seeks via this ground to re-agitate an issue which was determined by the Tribunal on 30 December 2024. That determination has not been disturbed. To the extent that the asserted second limb of the “double penalty” is dependent upon acceptance of the asserted first error, it fails. To the extent that the second limb of the asserted error is not dependent upon it, it requires determination by application of the principles emerging from House.
The Respondent submitted that the Appellant’s contention that the Tribunal’s costs order contravenes the principle that the purpose of a costs order is compensatory not punitive . The Appellant failed to “grasp the rationale of discounting a successful claimant’s recovery, that also being to compensate, not to punish.” It was submitted that “not to compensate (nor to punish) the successful part in this case, but to compensate the otherwise unsuccessful party for the costs it needed to incur in order to reduce its liability on contentious aspects of the claim” constituted a failure to grasp the rationale of discounting a successful claimant’s costs recovery. The Respondent submitted that, although ultimately unsuccessful with respect to an issue, as the Tribunal was submitted to have recorded, it was necessary for the Respondent to incur costs in refuting the Appellant’s claims with respect to the false lease and false invoice.
The Respondent relied on the decisions in Yey and Bostik in support of its contentions that the Tribunal at first instance had not erred in principle in taking into consideration the Appellant’s conduct, and its resulting increase in the Respondent’s costs. It was submitted that the authorities made clear that “precise quantification in time or monetary terms of the additional burden” upon the Respondent need not be undertake by the Tribunal, and that “an impressionistic broad brush approach is sufficient.”
In her submissions in reply the Appellant disputed what she asserted was the Respondent’s “gloss” on the decision of the Tribunal, but did not otherwise advance her primary contentions.

The Appellant’s contentions erroneously suggest that the discount applied by the Tribunal of 40% was referable to the findings made in the substantive decision of 30 December 2024 with respect to her conduct. As a reading of the Tribunal’s reasons makes clear, that was not the case. The proven “misconduct by the [Appellant] in the promulgation of a false document” was considered, but was only one of the matters to which the Tribunal had regard and was afforded limited weight by the Tribunal in the exercise of its discretion. The Appellant has not demonstrated that taking her proven misconduct into account was erroneous. Her challenge is necessarily that it must have been given such weight as to enliven the final limb of House.
As the Tribunal’s reasons recorded at [61] it did not find that the “misconduct” of the Appellant extended the hearing beyond its allocated time. The misconduct which it considered to be relevant was limited to the extent to which it “caused the Respondent to incur costs in establishing the falsity of the document” propounded by the Appellant in the substantive proceedings.
The Tribunal’s findings that the Respondent had incurred such costs have not been shown to be wrong. The Tribunal, as was open to it, did not find that the Appellant’s misconduct was such as to require her to be entirely deprived of her costs but was “appropriate” to be taken into account in determining whether to award her the whole costs of the proceedings or a proportion, and, if so, what proportion. The Tribunal proceeded to record [62] that “By reason of the [Appellant’s] lack of success on substantial issues, it is appropriate to award the [Appellant] only a proportion of her costs”.
In Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [69], it was accepted that a successful plaintiff ought not usually be deprived of his or her costs, or made to pay the costs of the other party unless he or she has been guilty of some form of misconduct. The High Court said that “misconduct” in this context (citations omitted) “means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court, prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute.”
The Tribunal identified [63] the basis on which it determined the 40% discount of the Appellant’s costs. The discount was referable to a number of factors, the first of which was “the time taken up both at the hearing and in preparation for the hearing by the issues on which the Applicant did not succeed, as outlined above” and a “small further reduction by reason of the costs incurred through the [Appellant’s] creation of the false residential tenancy agreement, which occupied time both at the initial hearing and that [sic] the remittal hearing” and “caused the Respondent to incur costs in obtaining evidence from Mr Wang to establish that he had not signed the document”.
The Appellant’s lack of success on other factors was identified by the Tribunal at [57]-[60] of its reasons. None of those factors was based on erroneous findings of fact. None of those factors was irrelevant to the issue requiring determination. The Tribunal’s exercise of discretion has not been shown to have involved a failure to have regard to relevant facts or circumstances.
As the authorities confirm, the Tribunal was not obliged to attempt to identify the percentage discount with respect to any of the matters to which it had regard in arriving at an overall discount figure. As accepted in Bostik, the question of apportionment is “very much a matter of discretion” and “mathematical precision is illusory.”
Nothing to which the Appeal Panel has been referred demonstrates that the Appellant asserted before the Tribunal at first instance that the exercise of its discretion should be influenced by any asserted punitive effect of a discount of a costs award in her favour. It was open to the Tribunal to have regard to the Appellant’s “misconduct.”
We do not accept the characterisation of the proportionate costs order made as “punitive.” Rather, it reflects (a) an absence of success on issues; and (b) any applicable misconduct, or disentitling conduct, that the deprives a successful party of part of its costs.
To the extent that it was taken into account, the Appellant has not demonstrated that it must have been responsible for the great bulk of the 40% discount which the Tribunal determined to be appropriate. The other factors to which the Tribunal referred were sufficient to justify the great bulk of the 40% discount. This ground fails.

Although not necessarily advanced on that basis, the question of law asserted by this ground involves the Tribunal mistaking the facts, by making a finding which was asserted to have not been open on the evidence or wrong (Edwards v Noble).
In support of this ground the Appellant submitted that the brickwork deterioration was not discovered until after the invasive investigation which she procured in September 2023, and thus after the original substantive hearing. It was acknowledged that, after the Respondent conceded a breach of s 106(1) of the SSMA, the obligation to investigate the scope of defects, establish the extent of the damage and adduce expert evidence required to support a remediation order rested on the Respondent, and not the Appellant. It was submitted that the finding of the Tribunal at first instance at [53] that the Appellant was not obliged to maintain proceedings to obtain the work orders (and was therefore not entitled to costs of those unwarranted proceedings) “inverts that analysis entirely” by treating the Appellant as bearing a litigation obligation that fell “squarely” on the Respondent. It was submitted that finding that the Appellant was not obliged to maintain proceedings to obtain orders which the Respondent conceded were required was “logically inconsistent with the record.”
In support of this ground, the Appellant sought to rely on the report of Scott Su of 29 May 2026. The Appellant made no formal application for leave to rely upon that report. The Respondent took no point on that, but submitted that the Appeal Panel would not receive it as it would not demonstrate appealable error.
The Appellant submitted that the May 2026 Scott Su report “provides powerful independent objective corroboration that the proceedings were necessary throughout, that the Appellant could not have achieved compliant rectification … through any lesser scope, and that PM Robertson’s premise – that she was not obliged to maintain proceedings to obtain the orders – was factually and technically wrong.”
The Respondent submitted that the Appellant erroneously submitted that, at [53], the costs decision marked as the ““central pillar” of its determination that work orders were a separable issue from those of damages the finding that the OC had conceded its obligation to rectify the brick wall substratum surrounding [the Appellant’s] bathroom following the “invasive investigation”. That was submitted to be a “misconceived analysis in the light of the principles emerging from Bostik that, for the purposes of exercising the costs discretion, “issues” comprise any disputed questions of fact or law”“. The Respondent submitted that the Appellant’s “real point seems to be that if this concession was elicited from the OC in the litigation then that alone justifies an unqualified costs order in her favour.” The Respondent submitted that the fact that the relief obtained by the Appellant was by way of concession, being an order to rectify a brick substrate was “miniscule” by comparison with the extent of the relief sought, which was an order for complete waterproofing and reinstatement of her bathroom. That was submitted to have justified the discount of costs recovery awarded to the Appellant.
In her submissions in reply, the Appellant asserted that the Scott Su evidence was “not advanced to reopen the substantive decision on the merits” but went to whether orders 3 and 4 represent the relief which the Appellant sought from the outset of the proceedings and thus constitute a complete (or substantially complete) success warranting the ordinary costs follow the event rule. The Appellant submitted that leave to adduce the Scott Su evidence should be granted in reliance on the decision in Ugur v Commissioner of Police [2023] NSWCATAP 261 at [139] in that it was significant evidence not reasonably available at the hearing, and, contrary to the Respondent’s submissions, it was relevant to the issue raised by this ground of appeal.
In the passage to which the Appellant referred, the Appeal Panel accepted that “generally, to be admitted, fresh evidence must satisfy three conditions: it could not have been obtained with reasonable diligence in the original proceedings; there is a high degree of probability that, if admitted, there would have been a different result in those proceedings, and the evidence must be credible: Akins v National Australia Bank [1994] 34 NSWLR 155 at 160, Clarke JA (Sheller JA agreeing); Agripower Barraba Pty Ltd v Blomfield [2015] NSWCA 30; (2015) 317 ALR 202 at 68 per Sackville AJA.”
The law with respect to applications to adduce new or further evidence in an appeal is not in doubt. In CDJ v VAJ (1998) 197 CLR 172 [1998] HCA 67 (CDJ) the majority said at [109] of a Federal provision permitting further evidence in an appeal which proceeds by way of rehearing that the provision was “remedial”, its “principal purpose”, being to invest the appellate court with the discretion to admit “further evidence, where that evidence, if accepted, would demonstrate that the order under appeal is erroneous”. Their Honours observed that the power “exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate principles.”
Prior to the decision in CDJ, an appellant seeking to rely upon further evidence needed to demonstrate that the evidence was not available when the proceedings were heard at first instance (Wollongong Corporation v Cowan (1955) 93 CLR 445; [1955] HCA 16).
Schedule 4 to the CAT Act, Sch 6, cl 12(1)(c), which allows an Appeal Panel to grant leave to adduce new or further evidence in an internal appeal requires the appellant to demonstrate a substantial miscarriage of justice because (c) “significant new evidence has arisen being evidence that was not reasonably available at the time when the proceedings under appeal were being dealt with”. In Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 at [61], McColl JA said that, in an appeal which proceeds by way of rehearing, as the present appeal does, the appellate body has the discretion to admit further evidence, to correct errors which would not be remedied by the application of conventional appellate principles.
In Ros v Commissioner of Police [2020] NSWCATAP 70 (Ros) the Appeal Panel accepted at [33] that “generally speaking, the further evidence sought to be admitted would have to relate to the Tribunal’s decision at first instance and have been evidence which was relevant at the time of that decision”. Whether it was “likely the further evidence would have produced a different result at the Tribunal” was also considered to be relevant. The discretion to receive further evidence was also informed by any potential prejudice to the other party upon receipt of the further evidence. The Appeal Panel observed that “whether the further evidence would allow the Appeal Panel to consider whether, with the benefit of hindsight, it has been demonstrated that serious injustice has resulted or will, in fact, result from the exercise of the Tribunal’s discretion, may also be relevant.”
In ZND v ZNE [2020] NSWCATAP 34 at 62 the Appeal Panel observed that “Generally, fresh evidence must satisfy three conditions: it could not have been obtained with reasonable diligence in the original proceedings; there was a high probability that if admitted there would have been a different result in those proceedings, and; the evidence must be credible”. The Appeal Panel followed that reasoning in Murabito v Commissioner for Fair Trading (No. 2) [2020] NSWCATAP 135 at 35. In McNeill v Clarence Valley Council [2025] NSWCATAP 184 the Appeal Panel accepted that “not all” of the “features” identified in Ros needed to be present before an Appeal Panel may decide to admit further evidence in an appeal which proceeds by way of rehearing. Those principles must be read subject to the legislative requirement in appeals from the Consumer and Commercial Division of the Tribunal that the new evidence was not reasonably available at the time the proceedings were heard at first instance.
The report clearly did not materialise until May 2026. The Appellant has adduced no evidence to establish that she was unable to have obtained the report prior to the determination of the costs dispute. To the extent that the report is not directed to undisturbed findings in the substantive decision of 30 December 2024, it may provide the basis for a further application to the Tribunal at first instance pursuant to those orders. The evidence does not satisfy at least two of the pre-conditions which the authorities confirm “generally” apply to applications to adduce further evidence in an appeal. Even if accepted, the further evidence would, at most, demonstrate that other findings could have been made by the Tribunal at first instance. It would not establish that any material finding was erroneous.

The Appellant’s contentions focus on the final sentence of the Tribunal’s reasons at [53]. As the authorities make clear the reasons must be read as a whole. Doing so precludes acceptance of the success of this ground. The Tribunal recorded [52] that the Respondent “maintained the position throughout the hearing that the [Appellant] was entitled to no compensation in respect of the Respondent’s breach of s 106 by reason of the [Appellant’s] obligation to indemnify the Respondent in respect of any liability arising from the [Appellant] engaging in short term letting”. The Tribunal reiterated that the Respondent “failed” with that contention.
The Tribunal recorded at [53] that the Appellant was “not wholly successful, and she was unsuccessful in some substantial respects, including her claim for a work order requiring the full rectification of the bathroom”. The Tribunal referred in that regard to its decision in the substantive proceedings of 30 December 2024 at [252], [254]-[255]. The Appeal Panel has set out those findings earlier in these reasons. It is not disputed that the work orders which were made were founded on concessions by the Respondent and that, in those circumstances, the Tribunal did not find that the Appellant was obliged to maintain the proceedings in order to obtain those orders. The Appellant has not demonstrated that the Tribunal erred on either of the bases asserted by her in making any of those findings.
We do not accept the Appellant’s submission that the report of Mr Su demonstrates she obtained the work order for repairs of common property she sought. That mischaracterises what orders she sought before Robertson PM, and what orders she obtained. As the Appeal Panel decision in Selkirk v The Owners-Strata Plan No 2661; The Owners-Strata Plan No 2661 v Selkirk [2026] NSWCATAP 211 sets out, the Appellant sought work orders that the whole of the bathroom of the lot, and associated areas, be removed and replaced. She failed in that application, for reasons that included her decision to alter common property by way of “stripping out” the bathroom without approval of the owners corporation. The repair order made was a limited one, based on a limited concession by the owners corporation.

We acknowledge that the above authorities deal with applications to vary costs orders under r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) and, arguably, ss 38(1) and 38(4) of the CAT Act allow a more flexible approach. We also acknowledge that there have been past Appeal Panel decisions where parties have not made costs submissions in their appeal submissions, and have been allowed to make a costs application separately to the substantive appeal decision without objection or criticism from the Appeal Panel.
However, compliance with procedural directions of the Appeal Panel is important, and failure to comply is not lightly disregarded. It is consistent with the guiding principle of the Tribunal under s 36(1) of the CAT Act, and the obligation of parties and representatives to assist the Tribunal to achieve that guiding principle under s 36(3) of the CAT Act, that costs submissions are made, where reasonably practicable, with the appeal submissions so that the Appeal Panel can deal with the issue of costs, if appropriate, in the substantive appeal decision. Unnecessary bifurcation of decisions increases the costs to parties and taxes the scarce public resources of the Appeal Panel. Parties and practitioners should not assume that the issue of costs will automatically be dealt with by way of further submissions after the appeal hearing. Rather, they should, as a matter of practice, make costs submissions in the appeal submissions unless there are cogent reasons they cannot do so. Any such cogent reasons should be identified.
Neither party complied with the direction at Note 9(2) in the procedural directions made at the call over of the appeal. Neither party advanced any cogent reasons why they could not, in their appeal submissions, make submissions on the issue of costs of the appeal based upon foreseeable possible outcomes.
Notwithstanding that failure, and as the fate of any costs application arising from the Appeal Panel’s decision in the costs appeal could involve consideration of the reasons for that decision we grant the indulgence of giving the parties the opportunity to make submissions with respect to costs of the appeal. We have set out a procedural timetable to deal with the issue of costs.
However, it is unacceptable that parties have overlooked and not complied with procedural directions, or not given a cogent explanation for failing to comply.

Selkirk v The Owners-Strata Plan No 2661

At a glance

Court

Decision date

Before

Catchwords

Source

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Catchwords

Judgment

REASONS FOR DECISION

Procedural history

Reasons for the decision of 27 February 2026 (the costs decision under appeal)

The principles governing the appeal

Grounds of appeal

Ground 1: “Misapplication of Bostik Australia Pty Ltd v Liddiard (No. 2) [2009] NSWCA 304: The Tribunal erred in treating compensation and work orders as distinct or separate issues (J[59]); or alternatively that a 40% discount was warranted”.

Consideration

Issue 6

Ground 2

Consideration

Ground 3

Consideration

Ground 4

Conclusion

Costs of the Appeal

ORDERS

Parties

Legislation Cited (6)

Cases Cited (57)