The Owners - Strata Plan 60590 v Whitman

General Points

1. The proceedings the subject of appeal related to a dispute between the owner of a lot in a strata development (the respondents to the appeal) and the owners corporation (the appellant) (the OC) about air conditioning supplied to their lot (lot 33).
2. The OC does not seek the costs of the appeal on the basis of their success in the appeal being allowed and the orders of the Tribunal set aside. That is understandable in circumstances where there was no hearing of the merits of the appeal.
3. The central issue raised by the appeal was whether the Tribunal erred in concluding that the whole of the air conditioning system supplying lot 33 was common property in circumstances where it was common ground that there were components of the system within the boundaries of lot 33. If this was an error, it did not follow that the appeal would resolve all questions about whether any particular part of the componentry within the boundaries of the lot was, nevertheless, common property.
4. It became clear from the parties submissions about costs that underlying the confined issue that arose on the appeal, there existed a protracted dispute between the parties about the repair or replacement of this system, including responsibility for damage done to a fan coil unit in a cupboard in lot 33, why the system was not working properly, how best to fix it, whether it should be replaced and, if so, in whole or in part and by what system and how any replacement system was to be paid for.
5. However, despite this setting, each party criticises the other for unreasonably prolonging the appeal by not settling the appeal at an earlier stage before the day of the hearing even though the wider dispute remained unresolved. Quite rightly, no party asks us to make findings about the merits of offers to settle the wider dispute during this period up to the time when the orders allowing the appeal were made.
6. It also emerged from the respondents' submissions about costs that they have for some time been very critical about the way the OC has dealt with the underlying dispute, including before and during the proceedings at first instance and during the pursuit of the appeal. However, in dealing with these costs applications we are only concerned with the conduct of the appeal and not with these broader criticisms that the respondents raise against the OC.
7. We also note that both parties make submissions impugning the motives or intentions of the opposing party in respect of the appeal and that each has provided affidavit evidence from their solicitors. In this regard, one conversation between the solicitors is disputed. Nevertheless, neither party has sought to retract their agreement for these costs applications to be dealt with on the papers and put these contentions in cross-examination. In the circumstances, we are in no position to make serious adverse findings concerning motive or intention against either party.
8. In saying this, we do not suggest that even more time and cost should have been devoted to the determination of these costs' applications. It is regrettable that they have generated the amount of work that they have, all the more so when it appears from correspondence between the parties' solicitors shortly before the hearing of the appeal, that we have now seen, that there was consensus that the appeal should be disposed of on the basis that each party pay their own costs.

Summary of the parties' submissions

1. A number of the respondents' submissions can be rejected with a brief explanation as follows: 1. It was submitted that the OC conducted "the proceedings" in a way that unnecessarily disadvantaged the respondents (s 60 (3) (a)), with reference here to allegations about failure to repair parts of the system, failure to comply with directions of the Tribunal at first instance and failing to comply with the orders made on 17 January 2019. However, these submissions fail to appreciate that we are concerned with the conduct of the appeal, including, potentially, the merits of the appeal, and not with the merits of aspects of the broader dispute or with the conduct of the proceedings at first instance. As to the latter, no costs order was sought or made in relation to the proceedings at first instance. We also note here that the respondents came to accept that the orders made on 17 January 2019 should be set aside. 2. In support of the contention based upon s 60(3) (a), it was also submitted that the respondents were unnecessarily disadvantaged because the OV engaged lawyers to represent them on the appeal. However, both parties were granted leave to be legally represented on the appeal at a directions hearing on 26 February 2019. We are not dealing with an appeal from that decision. We add that we see nothing surprising about the grant of such leave bearing in mind the legal questions that arose about responsibility for the repair of the system. 3. Again in support of the contention based upon s 60 (3) (a), it was also submitted that the OC had failed to comply with the Appeal Panel's directions for provision of material in support of the appeal. However, the material in issue was supplied one day later than the extended time for service and the respondents do not explain how it is that such delay has any logical connection with their costs application. 4. In relation to the factor in s 60 (3) (c), it was submitted that the confined issue that the Tribunal decided as a preliminary issue in favour of the respondents was raised by the Tribunal and not by the parties and that the respondents did not understand the issue at that stage. This submission seems to have been made in anticipation that the OC would rely on the strength of the merits of their appeal in support of an order for costs. However, it does not do so. 5. In relation to the factor in s 60 (3) (g), the respondents point to offers made before and during the proceedings at first instance but without explaining their relevance to these applications. In any event, as we have said, we are in no position to assess the merits of offers to resolve the underlying dispute.
2. We have not been able to discern any substantial reason why the respondents might be entitled to all the costs of the appeal. As far as we can see, the respondents' only contention of any substance was that they should have their costs of the appeal from shortly after 28 March 2019 on which date they made an open offer to consent to the orders sought by the OC. They contend that the offer gave the OC all that it sought on the appeal, it should have been accepted, with the consequence that their legal costs in this period would have been avoided.
3. In this regard, the respondents make submissions that: 1. Instead of accepting the offer the OC "sought to negotiate other terms that were outside the issues that were the subject of the appeal". 2. These negotiations by the OC have in part been to seek a resolution which would require the respondents to take over the obligation to maintain the air conditioning system as a whole. We remark here that we are in no position to make any finding about such a contention. 3. Because the OC's legal cost were covered by insurance, it had no incentive to resolve the matter by accepting the 28 March 2019 offer. We remark again that we are in no position to make any finding about the criticism levelled at the OC and, perhaps, its solicitors, which appears to be implicit in this submission. 4. The "proceedings" were made overly complex by the "demands and correspondence" from the OC which were unreasonable and unnecessary. 5. Once the respondents agreed to the primary order sought by the appellant on appeal, the guiding principle in s 36 (3) of the NCAT Act required the OC to take action to have that consent effected and have the issue of costs either agreed or brought to the attention of the Appeal Panel so that appropriate directions to determine costs could be made. Instead, the OC, by its solicitor, objected to the Appeal Panel being informed that the open offer had been made.
4. The respondents also submitted that the OC insisted that the respondents file submissions, as they did on 9 April 2019, when it was unnecessary to do so and the matter should have been re-listed by agreement before the Appeal Panel almost immediately after the making of the 28 March 2019 offer.
5. The OC applies for its costs of the appeal from and including 1 April 2019, alternatively from and including 8 April 2019, or perhaps from 9 April 2019. It contends that it should have these costs on the basis that the respondent unreasonably prolonged the time taken to resolve the appeal
6. It also contends that it should have these costs on the basis that the respondents acted in a manner intended to avoid determination of the real issues in the dispute contrary to s 36 of the (the NCAT Act) [our emphasis]. As to this latter submission, we have already said that we are in no position to make finding about either party's intentions or motives. In any event, as will be seen below, we do not accept that the facts as we have seen them provide an adequate foundation for such a submission, particularly given the lack of clarity about the parties' rights and the broader dispute that existed.
7. In this regard, the appellant makes submissions that: 1. On 1 April 2019, the respondents informed the OC that the fan coil unit was lot property but said the switch, control panel and refrigerant piping was common property, which in the context of what was ultimately agreed at the final hearing, was "unsustainable". Hence, according to the OC, this is the day the respondents unreasonably continued to dispute that various parts of the system were lot property. 2. Conduct by the respondents' solicitor over the period from 1 to 10 April 2019 (the day of the appeal hearing) shows that the respondents were attempting to avoid a determination of the real issue in dispute in the appeal with a view to reserving their ability to dispute the legal status of everything other than the fan coil unit. 3. Alternatively, a cost order should follow "from 9 April 2019" being the date the appellant proposed consent orders that formed the substance of the final orders and notation of the Appeal Panel (paragraph 22 of written submissions dated 1 May 2019). 4. Considering the respondents capitulated, the appellant had a strong case on appeal which is in favour of the appellant's cost application.

The decision of the Tribunal on 17 January 2019

1. In circumstances that it is unnecessary for us to recount, on 17 January 2019, after a hearing in which the Member identified a preliminary issue for determination, the Tribunal made the following orders, supported by oral reasons: 1. The OC shall take immediate steps to repair or, as necessary, replace all components of the air conditioning system servicing lot 33. All work is to be completed by 17 February 2019. 2. The application is otherwise dismissed pursuant to s 55 (1) (a) of the NCAT Act as having been withdrawn.
2. This decision was arrived at on the basis of a finding that various matters indicated that components of the system were common property even though they were located within the boundaries of lot 33, and that this was so despite the statutory definitions of "common property", "common infrastructure" and "lot" in the Strata Schemes Development Act 2015. On the other hand, it is worth noting that the decision was consistent with a letter to the respondents from Land Registry Services dated 31 August 2018, following enquiry by them.
3. It followed from the finding as to common property that it was the OC's responsibility to maintain and repair the whole of the air conditioning system: s 106 of the Strata Schemes Management Act 2015.
4. The Tribunal's oral reasons did not contain a full description as to what was the "remaining componentry" of the system on level I of lot 33 but did refer to ducting within level 2 of the lot that was common property because it was marked as such on the strata plan.

Evidence and written submissions on the applications

1. On these applications we came to be presented with an unnecessarily large quantity of material, which was presented to us in an inconvenient way, with correspondence to be found in a number of different places. A number of documents were provided by the respondents the significance of which was never explained.
2. In addition to the material we had received for the appeal itself, we received affidavit evidence from the parties as follows:

• Affidavit of Caitlin Jane Anderson sworn on 10 April 2019, with 146 pages of correspondence annexed.
• Affidavit of Richard Anthony Watson sworn on 30 April 2019, with Ms Anderson's above affidavit as an exhibit, along with a separate bundle of documents (unpaginated).
• Affidavit of Peter Ton sworn on 1 May 2019, with 45 pages of annexures.
• Affidavit of Richard Anthony Watson sworn on 3 June 2019, with an annexure.

1. The written submissions consisted of:

• Respondents' submissions dated 30 April 2019, along with a Chronology. We came to appreciate that the Chronology was incomplete.
• Appellant's submissions dated 1 May 2019.
• Respondents' submissions in response to the Appellant's submissions dated 4 June 2019.
• Appellant's submissions in response to the Respondents' submissions dated 4 June 2019.
• Respondents' submissions dated 21 June 2019 in reply to the Appellant's submissions dated 4 June 2019.

Facts and conclusions

1. In the proceedings at first instance the parties were unrepresented.
2. The respondents commenced the proceedings in October 2018 against a background of controversy about the air conditioning system dating back to the summer of 2017. There were parts of the system that were clearly common property owned by the OC, including condensers on the roof. A fan coil unit and some other components were contained in a cupboard inside the respondents' lot on level 1. Some ducting was also located inside the lot. Some of this was on level 2 and some on level 1. On the strata plan, the ducting on level 2, but not the ducting on level 1, was identified as common property.
3. In their application commencing the proceedings, the respondents sought an order that the OC enter into a contract for the installation of a particular Daikin reverse cycle, split ducted system. They also sought costs orders against the OC based upon allegations that were very critical of the manner in which the OC had dealt with their air conditioning problems.
4. As we have indicated, the orders made on 17 January 2019 provided for the work to be completed by 17 February 2019. Some repair related work was carried out on the air conditioning system on behalf of the OC on 29 January 2019 (to the fan coil), 11 February 2019 (inspection), and 8 March 2019 (refrigerant in roof top condenser). No party has suggested that all the problems with the system were remedied by these steps.
5. On 14 February 2019, the OC, now represented by Grace Lawyers Pty Ltd (Grace Lawyers), lodged an appeal from these orders seeking an order that the orders made on 17 January 2019 be set aside and in lieu thereof the respondents' application be dismissed. The costs of the appeal were also sought.
6. The appeal grounds make it clear that the central issue on the appeal was whether the Tribunal had erred in finding that the whole of the air conditioning system was common property in circumstances where some of the components of the system were located within the boundaries of lot 33. As appears below, the respondents came to accept that the Tribunal had erred in so finding.
7. On 18 February 2019, the respondents lodged a renewal application in the Tribunal against the OC seeking renewal of the order made on 17 January 2019 for the OC to carry out the work to repair or replace the air conditioning system.
8. Initially, the respondents did not obtain any legal representation on the appeal. However, at a directions hearing concerning the appeal held on 26 February 2019 leave was granted for both parties to be legally represented.
9. On 21 February 2019, the OC lodged an application for a stay of the 17 January 2019 orders even though the date for performance of the work required by the orders had passed. At the hearing on 26 February 2019, a stay was refused on the basis of an undertaking from the respondents to reimburse the OC any costs of the work for which the respondents were ultimately found to be responsible.
10. At that hearing on 26 February 2019, the hearing of the appeal was fixed for 10 April 2019 and directions were made for the OC to provide its submissions by 19 March 2019 and for the respondents to provide their submissions (and other material) by 26 March 2019.
11. As will be seen, on these applications the respondents are critical of the failure by the OC to provide its material, including submissions, on time - the bulk of the material, including the submissions were supplied a week late on 26 March 2019, after an extension to 25 March 2019 was granted by the Tribunal on 19 March 2019 on the basis that no further extensions would be granted.
12. However, as far as we can see, the impact of this delay was inconsequential for costs purposes. The hearing date remained unchanged and on that date the appeal settled on terms outlined by us below.
13. Without prejudice offers to resolve the air conditioning dispute were made on 13 March 2019 (by the respondents) and 18 March 2019 (by the OC) but these were not accepted. Each contained offers directed at settling broader aspects of the dispute and not just the issue raised on the appeal.
14. For example, the respondents' offer sought replacement of the system with each party to bear a proportion of the costs. The OC's offer of 18 March 2019 not only sought the making of consent orders that the decision be set aside, it also sought agreement that the respondents would not further dispute that parts of the system within their lot were lot property and sought releases from all claims in respect of the system. It required that any settlement be set out in a Deed.
15. By an email sent on 28 March 2019, Watson & Watson (Watsons), solicitors for the respondents, sent two letters to Grace Lawyers. One of these letters outlined the delay by the OC in complying with the timetable.
16. The other letter was more significant for present purposes. It was an open letter stating that the respondents would consent to the order that the Tribunal's orders be set aside and in lieu thereof the strata title application be dismissed. Proposed consent orders in these terms were attached. The letter said that they did not agree to pay the OC's costs of the appeal and that if costs were pursued then each party's costs should be reserved with directions made that costs be dealt with on the papers. A response was sought by 4 pm on Friday 29 March 2019. A draft letter to the Appeal Panel was enclosed stating that the matter had been resolved on the basis of the consent orders. The letter asked for confirmation that it was in order to inform the Appeal Panel that the matter had been resolved and invited the provision of any proposed amendments to the letter to the Tribunal.
17. The open offer said nothing about the other aspects of the OC's offer of 18 March 2019, including what was to be accepted as lot property and the requirement for releases of claims. In these circumstances, bearing in mind the unresolved underlying dispute, we see nothing unreasonable in the OC's refusal to accept this offer at this time and its subsequent pursuit of better terms. After all, setting aside, by consent, the orders made on 17 January 2019 would only reverse the decision that the whole of the system was common property. It would not clarify what parts were lot property, let alone resolve all other aspects of the dispute.
18. Following the letters of 28 March 2019 from Watsons, there were ongoing settlement discussions between the parties up until the hearing on 10 April 2019: see Ms Anderson's affidavit sworn on 10 April 2019 at [6]. No party has sought to provide us with what they say is a complete account of these negotiations, including what occurred at client level.
19. What emerges from the evidence we have been provided with is that, eventually, the respondents provided some concessions about what was lot property for incorporation into the consent orders sent on 28 March 2019. This was achieved after a number of attempts by Grace Lawyers to expand what was agreed between the parties, including, at one point, raising the prospect of proceeding with the appeal so that rulings on significant aspects of the reasons why the orders at first instance should be set aside could be obtained in order to assist in the broader resolution of the dispute; see letter from Grace Lawyers dated 8 April 2019 sent at 3:44pm.
20. Whilst we say that the concessions were, eventually, provided, we do not accept that the respondents' conduct unreasonably prolonged the resolution of the appeal by failing to make appropriate concessions. This is because of two factors.
21. First, it was not until 9 April 2019, the day before the hearing of the appeal, that the appellant abandoned, for the purposes of disposing of the appeal, its attempt to settle the dispute on the broader basis, more favourable to the appellant, set out in its letter dated 18 March 2019.
22. Second, we have already indicated our unwillingness to make adverse findings about the motives or intentions of the parties. In addition, as we see it, we are not able to say that there was such precision about the application of the law to the facts that it was clear that it was unreasonable for the respondents to seek to confine the scope of their concessions. For a start, we do not have accepted findings of fact about all controversial items.
23. Thirdly, in our view, even after the appellant abandoned their attempt to settle the dispute on a broader basis, there remained some not insignificant "fine tuning" to be done in respect of the consent orders, including in the morning of 10 April 2019, in circumstances where precision about what was accepted as lot property was desirable.
24. We now set out more of the pertinent facts that concern these conclusions about the period from 28 March 2019 to 10 April 2019.
25. First, we step ahead to the consent orders that were made on 10 April 2019. It can be seen that what was added from what was proposed on 28 March 2019 was that the Appeal Panel noted the following agreement between the parties: a The respondents concede the Senior Member erred at law on the basis the Senior member failed to apply the statutory definitions and strata plan when determining what was lot and common property b The parties agree the ducting, fan coil and piping of the air conditioning system in the cupboard on level 1 of Lot 33 are lot property.
26. It can be seen that these terms represented a degree of compromise by the parties. These were more limited terms than those put to the respondents on behalf of the appellant over the period from 18 March 2019 to 8 April 2019: see the without prejudice letter from Grace Lawyers (save as to costs) dated 18 March 2019, which was re-opened by the email from Mr Ton to Mr Watson sent on 29 March 2019 at 5:50pm and repeated in a letter from Grace Lawyers to Watsons of Thursday, 4 April 2109 containing an offer that remained open for acceptance until the morning of Monday, 8 April 2019.
27. On the other hand, the respondents were now prepared to make concessions about what was lot property by reference to what was in the cupboard on level 1.
28. Leading up to these consent orders on 10 April 2019 the following, relevantly, occurred, in addition to the re-opening of the 18 March 2019 offer from the respondents on 4 April 2019 referred to above: 1. There was a disputed telephone conversation between Mr Ton and Mr Watson on 1 April 2019. Given that Mr Watson disputes what was said, we are unable to accept Mr Ton's version set out in paragraph 8 of his affidavit. Even if we found that Mr Watson did say that it was not agreed that the control panel and refrigerant piping was lot property, as already indicated, we are not prepared to conclude that it was unreasonable to confine the concession in such a manner. In this regard, we note that the agreement in the consent orders said nothing about the control panel and we do not know whether the "piping" in the cupboard referred to in the orders is all of the piping within the lot. 2. In an open communication by email on 4 April 2019, which referred to the open offer from Watsons of 28 March 2019, Grace Lawyers said that it did not appear open to the respondents to still dispute whether or not the part of the air conditioning system in the "lot airspace" was common property. The letter requested clarification as to which of the appeal grounds was disputed and how these accorded with the respondents' position that they consented to the appeal. 3. The OC criticise the respondents for not providing that clarification, despite being pressed a number of times to do so. However, it cannot be said that failure to do so prolonged the resolution of the appeal because, as appears from the without prejudice correspondence, at this time the OC was seeking agreement upon the broader matters set out in the 18 March 2019 letter in order to resolve the appeal. Secondly, it did not follow from the respondents' willingness to consent to the order setting aside the Tribunal's decision that all parts of the system in the "lot airspace" were not common property. There was a degree of complexity about the situation, and if there was to be agreement about what was lot property, rather than just setting aside the decision that the whole system was common property, there was a need for better precision than the reference to that part of the system located in "lot airspace". 4. An open letter from Watsons sent by email on 8 April 2019 purported to provide the clarification as to the respondents' position on the appeal grounds sought by the OC. It is difficult to understand what the letter was trying to convey about the appeal other than that it was accepted that the fan coil unit was not common property. However, for the reasons given in (3), this does not assist the OC to obtain the costs order that it seeks. 5. On 9 April 2019, the respondents filed and served their submissions on the appeal. 6. Later on 9 April, by an email sent at 4:28pm, Grace Lawyers sent a letter to Watsons with an open offer to resolve the appeal. As we have indicated, in this letter the OC did not pursue the broader settlement of the dispute it had previously been seeking. Amongst other matters, the letter sought an agreement that "the parts of the air conditioning system located within the boundary of lot 33 are lot property". It can be seen that this was a broader concession than that ultimately agreed - the latter being confined to what was in the cupboard on level 1. The concession sought had problems because, for one thing, it meant that ducting on level 2 of lot 33, marked on the strata plan as common property, changed status to the disadvantage of the respondents. 7. Interestingly, as we have already mentioned, this new open offer from the OC included a proposed order that each party was to pay their own costs of the appeal proceedings and proceedings at first instance. There was no suggestion at this time that there had been unreasonable conduct by the respondents' entitling the OC to an award of costs in its favour. 8. Understandably, the respondents took issue with the terms of the concession about lot property and, initially, by an email from Watsons sent at 4:45 pm on 9 April 2019 asked that the concession be in terms that "the parts of the air conditioning system located within level 1 of lot 33 are lot property". Then in an email sent by Watsons at 5:54pm that day it was suggested that the concession be changed to read "the parties agree that the internal componentry of the aircon system in the cupboard on level 1 of lot 33 is not common property". 9. Interestingly, as to costs, the proposal from Watsons in the email at 4:45pm was that the orders disposing of the appeal include an order that there be no order as to costs with the intention that each party is to pay their own cost of the proceedings. As with the OC, there was no suggestion at this time of unreasonable conduct entitling the respondents to an award of costs. 10. As will be seen, the OC took issue with the language of "not common property" instead of a positive position that it was lot property. However, we draw no conclusion adverse to the respondents about this because once accepted as "not common property" it fell outside the OC's repair obligation. Furthermore, the respondents' proposed concession was a response to the deficient terms that the OC had proposed. 11. Before the hearing of the appeal on 10 April 2019 scheduled for 2:15 pm, Grace Lawyers sent a without prejudice (save as to costs) response to Watsons by email at 8:26am. It sought information about the change from agreement that parts were lot property to an agreement that parts were not common property. 12. Following further exchanges between the solicitors on 10 April 2019 the parties arrived at an agreement about a more precisely worded concession that stated items in the cupboard were lot property and agreement about how to deal with costs issues, as set out above.
29. For the reasons that we have given as we have examined the facts, these events in the period from and including 29 March 2019 to before the hearing on 10 April 2019 do not warrant any conclusion of conduct by either party unreasonably prolonging the resolution of the appeal or failing to act within the guiding principle in s 36 (3) of the NCAT Act.
30. Finally, we deal with the remaining contentions by the parties: 1. The respondents submit that it was unreasonable for the OC to insist that they serve their submissions on appeal, as they did on 9 April 2019. Connected with this submission was a submission that the OC should have agreed straight away to the Appeal Panel being informed of their open offer of 28 March 2019 and to re-listing for the purpose of directions for resolving the remaining issue about costs. But, as we have indicated, it was reasonable for the OC to continue to explore a broader resolution of the dispute between the parties, as it did until 9 April 2019, and thereafter for concessions about what was lot property until shortly before the hearing, and, in any event, the respondents had not agreed to pay the OC's costs of the appeal. Even after the OC on 9 April 2019 abandoned pursuit of a broader resolution, there remained the prospect that the hearing of the appeal would be proceeded with because final terms for settlement of the appeal had not been reached. Given these circumstances, we find it difficult to see how a hearing by the Appeal Panel in advance of the hearing of the appeal would have been anything other than a waste of time. 2. The OC relied upon what was said to be a strong case on appeal. This can be accepted, but up until 9 April 2019 it sought to settle on broader terms than what was raised by the appeal and then, when it abandoned that course, the respondents quite reasonably negotiated the terms of the concession about what was lot property.

Orders

1. For the above reasons, we make the following orders: 1. each party's application for costs in respect of the appeal is dismissed, with no order for costs of the costs applications. 2. If any party seeks a different order in respect of the costs of the costs applications to that set out in Order 1 they are to write to the Appeal Panel with the order sought and short reasons for such order, along with agreed directions for making submissions about such an order.

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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: 07 November 2019