The Owners - Strata Plan No. 37762 v Dinh Phuong Dung Pham & Anor - [2006] NSWSC 1442 - NSWSC 2006 case summary

The Owners - Strata Plan No. 37762 v Dinh Phuong Dung Pham & Anor - [2006] NSWSC 1442 - NSWSC 2006 case summary — Zoe

[17]

Costs of Proceedings before the Supreme Court 6 The plaintiff has been wholly successful in these proceedings and as a consequence it is appropriate that the first defendant pay the costs of the proceedings. Some issue has arisen in relation to the wording and the use of the words "incidental to" in any proposed order. 7 Ordinarily orders that I make in relation to costs are orders of and incidental to the proceedings in question. It is a matter for the Costs Assessor under the provisions of the Legal Profession Act 2004 (NSW) whether costs have properly been incurred in relation to the proceedings in question. The term "incidental to" widens the net of costs covered by the order beyond the costs of the proceedings directly. 8 It is nevertheless subject to the assessment of party/party costs pursuant to the terms of s353 of the Legal Profession Act 2004 (NSW) and a Costs Assessor must consider whether or not it was reasonable to carry out the work to which the costs relate, whether the work was carried out in a reasonable manner and what is a fair and reasonable amount of costs for the work concerned. The Assessor must determine the issue of costs and issue a certificate therefor. From that certificate and/or assessment there are appeals to a panel and, to the extent allowed, the Supreme Court of New South Wales. 9 In other words, while it may be surplusage, the use of the words "incidental to" does not affect the role of the Costs Assessor in determining appropriate costs "associated with", and incurred because of, the proceedings. 10 Other than the issue relating to the use of the words "incidental to" in any form of costs order, the first defendant does not resist the making of an order that the defendant pay the costs of the plaintiff in these proceedings. Such a concession is appropriate and proper. The discretion reposed in the Court under s98 of the Civil Procedure Act 2005 (NSW) to order costs must be exercised judicially and/or, in any ordinary circumstance, require an order that the successful party's costs be paid by the unsuccessful party: Oshlack v Richmond River Council (1998) 193 CLR 72 at 97. I order that the plaintiff's costs of and incidental to the proceedings (as that term is properly understood) be paid by the first defendant.

[19]

Status of Tribunal 15 The issue to which attention needs to be paid is the status of the Consumer, Trader and Tenancy Tribunal ("the Tribunal") under the Act. Section 6(1) of the Act refers to an appeal "against the decision of a court". Court is defined inclusively as including "such Tribunals or other bodies as are prescribed". No prescription exists. The question becomes whether, for the purpose of the Suitors' Fund Act 1951 (NSW) the Tribunal is a court. 16 This issue was the subject of consideration by this Court in 2004. That consideration has not led to an amendment of the legislation. Justice Shaw in Krslovic Homes v Timothy Sparkes [2004] NSWSC 374 analysed the status of the Tribunal (and its predecessor) and determined that it was a court for the purposes of the Suitors' Fund Act 1951 (NSW). With respect, the analysis and conclusion of his honour is manifestly correct. 17 The Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) confers on the Tribunal a number of functions, some of which are recited in my earlier judgment. Section 21 of the last mentioned Act confers on the Tribunal such jurisdiction to decide matters and such powers to make orders and otherwise exercise any function in connection with any such decision as is conferred on it by this or any other Act. It is obvious from the terms of s67, and other sections, that the Tribunal has the power to decide matters which involve a matter of law and part of those functions include the functions conferred by s138 of the Strata Schemes Management Act 1996 (NSW). Those provisions require the Tribunal to determine whether or not a function has been exercised under that Act between parties who are affected by and/or have a legal interest in the operation of the strata scheme. The Tribunal is also entitled to determine whether or not there has been unreasonable conduct in the refusal of consent to building work under the provisions of s140. 18 The title "Tribunal" or "court" may, in the case of the latter, indicate that a court has been created but says nothing about the status of a Tribunal, so called. Whether a tribunal is a court or not is a matter of analysis. The High Court, for example has held that bodies called Courts were not: see for example Waterside Workers Federation of Australia v JW Alexander (1918) 25 CLR 434 at 463-464 and R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254. While each of those two cases were decided in the context of Chapter III of the Constitution, in each case the body was described in its title and in the establishment provisions as a court but the High Court held it was not. Similarly a body, especially one created by a state legislature, entitled a Tribunal can equally be a court. 19 A court for the purposes of the Suitors' Fund Act 1951 (NSW) must at least include bodies that exercise judicial power. The Tribunal in this instance from time-to-time exercises judicial power and resolves justiciable controversies, as that term is strictly understood. 20 The conclusion to which I have reached is re-enforced by the judgment of Shaw J to which I have referred and the acceptance by the legislature of that state of affairs since at least 2004. 21 There is little doubt that, having reached that conclusion, it is appropriate to issue an indemnity certificate and I do.

[20]

Costs before the Tribunal 22 One of the issues between the parties is the question of costs in the proceedings before the Tribunal the defendant submits that I should refer to the Tribunal the question of any award as to costs. 23 Section 192 of the Strata Schemes Management Act 1996 (NSW) provides: "[192] The Tribunal may not make any order for the payment of costs except as specifically authorised by this Act or in relation to an order dismissing an application or appeal because: (a) the application or appeal is frivolous, vexatious, misconceived or lacking in substance, or (b) a decision in favour of the applicant or appellant is not within the jurisdiction of the Tribunal." 24 No other provisions of the Act specifically authorise the making of an order as to costs. 25 The Strata Schemes Management Act 1996 (NSW) does not expressly invest the Tribunal with a general power to award costs and no other provision performs that task. The Tribunal is not empowered or invested with a general power to act as a court of law and equity or otherwise to exercise inherent powers which would imply the power to award costs. 26 Section 192 of the Act is a provision which restricts the power to award costs otherwise granted. No other power exists. 27 The power to award costs was a power inherent in courts of equity but otherwise required, in the case of statutory courts or Tribunals, a particular and express conferral of power on the Court. No such conferral has been enacted: see Knight v FP Special Assets Limited (1992) 174 CLR 178; Canceri v Taylor (1994) 1 IRCR 120. 28 The provisions of s192 of the Strata Schemes Management Act 1996 (NSW) is a restriction on the power to award costs, not the grant of jurisdiction so to do. There being no other general provision to enable the Tribunal to award costs, there is no power in the Tribunal to award costs. This means, absent a general power, that the Tribunal is a strictly no costs jurisdiction. In those circumstances it is inappropriate for this Court to award costs in the proceedings below. 29 I make the following orders further and in addition to the orders made on 29 November 2006:

The Owners - Strata Plan No. 37762 v Dinh Phuong Dung Pham & Anor

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