The Owners - Strata Plan 69205 v Community Association DP 270244 [2025] NSWCATCD 105 | Case summary

NCAT Consumer and Commercial|2025-08-05|Before: Community Association DP

The applicant filed submissions on 13 February 2025. The submissions of the applicant can be summarised as follows:

(1) Under s 60 (1) of the Civil and Administrative Tribunal Act 2013 (NSW) ("") each party is to pay their own costs of proceedings before the Tribunal.

[52] Where there is a mixed outcome in proceedings, the question of appointment to reflect those outcomes is a matter of discretion. Costs can be apportioned on a relatively broad-brush basis and largely as a matter of impression and evaluation without the need for achieving mathematical precision as such precision is illusory: Bartier Perry v Paltos at [255]-[256]; James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 (James v Surf Road Nominees (No 2)) at [36].

(6) The applicant also relied upon the decision of the Appeal Panel of the Tribunal in Markunsky v Zammit (t/a Zammit Quality Constructions [2016] NSWCATAP 253) in which an Appeal Panel stated:

[29] Second, in proceedings in which multiple issues are contested - a frequent occurrence in applications made under the Home Building Act 1989 (NSW) - the conventional approach is that costs will follow the event, that is, in accordance with the outcome of the proceedings as a whole without an attempt being made to differentiate between particular issues on which the successful party overall may not have succeeded: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38]; James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [32]...

(7) The applicant submitted that it had succeeded "on many of the issues and originally was awarded 50% of its costs, but because of the Appeal Panel determination costs can only be awarded on the s. 80 and s. 82 issues."

(1) The applicant's submission that the application to vary the CMS under section 80 be adjourned to enable the other Subsidiary Associations to be served was accepted by the Tribunal.

(2) Section 82 of the CLMA empowered the Tribunal to invalidate a resolution where the CLMA is not complied with.... The first resolution of the Community Association which was challenged was that which purported to accept the proposal put forward by the respondent to replace the pebblecrete finish of the interior of the swimming pool with a fibre coat finish. The applicant succeeded on that issue.

(3) The second resolution at issue was that which purported to give effect to the respondent's decision not to maintain the irrigation system in the Subsidiary Open Spaces within the applicant's subsidiary scheme. Again, the applicant succeeded on that issue.

(4) In any event, the award is no more than a matter of impression. In Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd ( No. 3) (1998) 30 ACSR 20 Young J ordered that the relevant defendants pay 50% of the plaintiff's costs. While there is no way of differentiating the various issues in terms of costs incurred or time spent, as a matter of impression a cost award of one third (as opposed to 50%) is in order.

The respondent filed its first set of submissions on 31 March 2025. On 17 April 2025 the respondent filed a further set of proposed "updated submissions". In their covering letter enclosing the updated submissions the solicitors for the respondent stated relevantly as follows:

On the 31 March 2025 the respondent filed Costs Submissions...

On 2 March 2025 (Senior Counsel for the respondent) updated the Respondent's Costs Submissions to further particularise the arguments already put by him in the submissions...

On 7 April 2025 we sent an email to the applicant's solicitors... attaching the updated submissions and requesting that the applicant consent to the respondent filing and relying upon the updated submissions and if the applicant did not consent provide the reasons why so that we could inform the Tribunal. We have not received the applicant's answer to this request.

In the circumstances, we request that the Tribunal:

Accept the enclosed Updated Submissions for filing.

Allow the respondent to rely on the Updated Submissions and if the Tribunal is minded to do so, disregard the version of the submissions filed on 31 March 2025, and,

In fairness to the applicant, make an order extending the time for the applicant to file its costs submissions in reply to 5 May 2025.

We confirm a copy of this letter and the enclosed Updated Submissions have been provided to the solicitors for the applicant.

No Submission, or other communication was received was received by the Tribunal from the applicant or its solicitors in relation to the above request. On 4 July 2025 a Directions Hearing took place in the Tribunal at which both parties were represented. No objection was raised by the legal representatives for the applicant in relation to the updated submissions from the respondent, nor was an application made to extend time for the applicant to make submissions in reply. Accordingly, I accept the respondent's application for the Tribunal to disregard the submissions filed on 21 March 2025 and to have regard to the submissions filed on 17 April 2025.
The submissions of the respondent can be summarised as follows:

(1) The Tribunal should decline to award costs to the applicant because there are no special circumstances warranting an award of costs within the meaning of s 60 (2) of the NCAT Act.

(2) Alternatively, if the Tribunal is minded to award costs on the basis of an apportionment, then any such apportionment should not exceed 5% of the applicant's overall costs.

(3) If the contention of the applicant is that its "success" on the section 80 and 82 issues comprises "special circumstances" in terms of s. 60, then it should be rejected. The Appeal Panel has repeatedly emphasised that success or failure does not, of itself, amount to special circumstances (Sahade v Owners SP No. 62022 [2015] NSWCATAP 225 at [44]; The Owners - Strata Plan 20211 v Rosenthal [2019] NSWCATAP 49 at [27]).

(4) The applicant was not in any event successful on the s 80 application because that application was merely adjourned. The applicant's inferred submission that the adjournment itself constitutes success because an adjournment was one of the orders it had sought in respect of the s 80 application should be rejected. The adjournment was only required because the applicant had failed to ensure proper notice of its application had been given to affected persons.

(5) In the absence of any attempt to identify any "particular facts" that take these proceedings "out of the ordinary" the applicant's contention that the proceedings are well out of the ordinary should be rejected. If this submission is accepted, the question of apportionment does not arise.

(6) However, if the Tribunal determines that special circumstances do exist, then the applicant's submission that apportionment is a "matter of impression" overly simplifies the relevant task. As Henry J recognised in Kanjian the aim of apportionment is to reflect the outcomes where there is a mixed outcome in proceedings. While her Honour accepted that costs can be apportioned "on a relatively broadbrush basis" and "largely as a matter of impression" her Honour did not suggest the apportionment was simply on a whim. While mathematical precision is not required, some level of rational explanation for adopting a particular apportionment as reflecting the mixed outcomes is required.

(7) In these proceedings the applicant had sought 30 orders in relation to the repair of the common property of which 23 were in its referred jurisdiction, five were in its original jurisdiction and two related to costs.

(8) Evidence on, hearing time spent on, submissions on and consideration by the Tribunal of the referred issues was "overwhelmingly greater" than that spent on the original jurisdiction issues. By way of illustration, 365 paragraphs of the principal decision were primarily addressed to the former, while just 25 were addressed to the s 82 application and 21 were addressed to the s 80 application. Most of the latter concerned the necessity to notify other members of the respondent of the application. The Tribunal would not treat the applicant as having succeeded on the s. 80 application.

(9) The only topic on which the applicant can relevantly be regarded as having succeeded for the purposes of its costs application is its application under s.82 invalidating the two sets of resolutions of the Community Association. These were as follows:

(a) two resolutions made at the Community Association meeting on 1 May 2019. (Motion 7 related to the resurfacing of the swimming pool with fibreglass and Motion 10 which related to the maintenance of the irrigation system), and,

(b) two resolutions made at the Community Association meeting on 10 November 2020 (mainly those passed pursuant to Motions 18.1 and 19.1, relating to payment of water service charges).

(10) The respondent submitted that "As the Tribunal expressly recognised, determination of the factual matters associated with the s 82 application had already been determined in the exercise of its referred jurisdiction (Principal Decision [376], [383], [386].) Making Order 20, invalidating the four resolutions under s 82 was a mere formality to tidy up "otiose" resolutions (Principal Decision [377], [384], [386])".

(11) "It follows that the issues on which the applicant succeeded comprised such an insignificant part of the totality of issues dealt with in the principal decision - less than 5% - that an order for apportionment of that insignificant portion will not reflect the broadbrush outcome of the litigation that a costs order is intended to achieve. Accordingly, no costs order should be made."

Each party consented to the Tribunal dispensing with an oral hearing and for the costs issue to be determined on the papers.

The applicant based its submissions, at least in part, on the contention that the circumstances of this case were well out of the ordinary and therefore "special" in terms of section 60 (2) of the NCAT Act.
However, as this costs decision concerns only the applications under ss 80 and 82 of the 1989 CLMA which the Tribunal determined in its original jurisdiction, it is necessary for the Tribunal to consider whether in relation to those applications only, there were special circumstances which warrant an award of costs in favour of the applicant.
In my opinion, the answer to this question is no. The application to the Tribunal in its original decision were made by way of an amendment to the original Application. To a substantial extent the orders sought in the amendment arose from factual matters which were the subject of the application in the referred jurisdiction. For example, the application in relation to the rescission of the resolution Community Association for the particular method of repair of the swimming pool arose from the fact that in the referred jurisdiction the applicants sought an alternative method of repair and further works in relation to the swimming pool. If the applicant was successful in the proceedings it would conflict with the Motion 7 on 1 May 2019. Similar considerations applied in relation to Motion 10.
Further, in my opinion, the applications to the Tribunal in its original jurisdiction did not have the factual complexity as the applications to the Tribunal in its referred jurisdiction. This is indicated by the fact that, as submitted by the respondent, 365 paragraphs of the principal decision were primarily addressed to the matters which the Tribunal considered in its referred jurisdiction and 46 addressed the matters which the Tribunal considered in its original jurisdiction.
Further, out of the 30 orders which the applicant applied for, only five (orders 23-27) were made to the Tribunal in its original jurisdiction. One of these (order 27) was for the purposes of the implementation only of orders 24 and 25.
In relation to the section 80 matters I further accept the submission of the respondent that a significant proportion of the Tribunal's Decision on these matters concerned the necessity to notify other members of the respondent of the application. In addition, it is clear that the application for the s 80 orders arose by reason of the perceived need on the part of the applicant to amend the CMS to accord with its preferred outcome in relation to the matters raised in the referred jurisdiction. Determination of the s 80 application was largely a matter of statutory construction and consideration of the requirements of procedural fairness. In my view, the issue does not warrant a finding of special circumstances which would support an order for costs.
I further accept that, in relation to the section 80 matters the applicant did not "succeed" as a result of the principal decision. The outcome was that the application under section 80 was adjourned for further directions before the Tribunal plus a Direction was given that prior to the Directions Hearing the Principal Registrar of the Tribunal was to provide a copy of the relevant documents giving notice of the application to each person who, in the Principal Registrar's opinion would be affected if the orders were made. The merits or otherwise of the application have yet to be determined. This being so, in my opinion, it is not appropriate for the Tribunal, in this Decision, to make a costs order in relation to those matters.

For the reasons expressed above, the order of the Tribunal in these remitted proceedings will be:

(1) The application by The Owners - Strata Plan 69205 for an order for costs of the proceedings is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

[1] The Owners - Strata Plan 69205 v Community Association DP 270244 [2024] NSWCATCD 29 January 2024

[2] The Owners-Strata Plan 69205 v Community Association DP 270244 (No.2) [2024] NSWCATCD 19 April 2024

Land Management Act 1989

Administrative Tribunal Act 2013

This Decision is made on remittal from, and pursuant to, the decision and orders of the Appeal Panel of the Tribunal given in Community Association DP 270244 v The Owners Strata Plan 69205 [2024] NSWCATAP 199 ("Appeal Proceedings").
The proceedings concerned a community title scheme in New South Wales in which relief was sought under certain provisions of the Community Land Management Act 1989 (NSW) (1989 CLMA). That Act (now repealed) contained provisions for disputes to be determined by an Adjudicator and by the Tribunal (originally, a predecessor Tribunal).
The primary proceedings were commenced in 2021 as an application for orders to be made by an Adjudicator under s 62 of the 1989 CLMA. Following commencement these proceedings were referred by the Adjudicator pursuant to s 71B (1) of the 1989 CLMA for determination by the Tribunal. Subsequently, an application was amended. The amended application sought that the Tribunal make orders that it alone was empowered to make under ss 80 and 82 of the 1989 CLMA. An adjudicator had no power to make orders under those provisions. The
On 29 January 2024 I delivered my decision[1] in the primary proceedings (principal decision) save as to the question of costs.[2] Twenty orders were made requiring the respondent to repair certain common property of the applicant strata scheme in the exercise of the Tribunal's referred jurisdiction. Four orders were made in the exercise of the Tribunal's original jurisdiction under the 1989 CLMA, ss 80 and 82. Order 20 invalidated certain purported resolutions of the respondent under s 82 of the 1989 CLMA.
Orders 21-23 adjourned the application for orders under s 80 of the 1989 CLMA to amend the Community Management Statement ("CMS"). The purpose of the adjournment was tenable all persons who might be affected by the proposed amendment to receive notice of the application to amend the CMS.
The decision on the costs of the primary proceedings was delivered on 19 April 2024 ("Costs Decision"). The Tribunal made an order that the respondent pay one half of the applicant's costs of those proceedings on the ordinary basis as agreed or assessed. The respondent appealed both the principal decision and the decision on costs.
In its decision in the Appeal Proceedings, the Appeal Panel (DP Harrowell) allowed the appeal in relation to the costs decision, set aside the costs decision and remitted the question of costs, but otherwise dismissed the appeal. In doing so, the Appeal Panel determined that the Tribunal had no power to award costs in connection with its referred jurisdiction (at [323]) but that it had power to award costs in respect of those matters which were within the Tribunal's original jurisdiction. At [331] the Appeal Panel said:

[331] As to an award for costs in connection with applications under ss 80 and 82 although these applications were included with the referred proceedings, there is no reason why orders could not be made in relation to that part of the proceedings relating to orders solely within the Tribunal's jurisdiction. The power to make orders in respect of separate issues is well recognised in this Tribunal Bostick Australia Pty Ltd v Liddiard (No. 2) [2009] NSWSCA 304.

[332] It is not possible from the cost decision to determine what if any orders should be made in connection with that part of the proceedings concerning ss 80 and 82. This will require an assessment by the Tribunal at first instance...

The Owners - Strata Plan 69205 v Community Association DP 270244

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