The Owners - Strata Plan No 70871 v Turek - [2020] NSWCATAP 29 - NSWCATAP 2020 case summary

NCAT Appeal Panel|2020-02-28

Background

This is a decision about whether the Respondents to the appeal should be granted their costs of the Appellant's unsuccessful Application for a Stay of the orders which are the subject of the appeal.
To succeed, the Respondents require an extension of time for the late filing of submissions on the application, to show that there are 'special circumstances' warranting me further considering the costs application and then to satisfy me that I should award costs: Brodyn Pty Ltd v Owners Corporation - Strata Plan 73019 (No 2) [2016] NSWCATAP 224 at [21], [24].
The Appellant is the Owners Corporation of a strata scheme and the Respondents to the appeal are lot owners in that scheme.
The Appellant has a pending appeal against a decision of the Tribunal at first instance to make an ancillary order which required the Appellant to hold a meeting to consider a licence proposed by the Respondents pursuant to s 131 of the Strata Schemes Management Act 2015 (NSW) (SSMA).
The Appellant says that the Tribunal had no power to make such an order, or that, if it did, it was exercised prematurely under s 232 SSMA, which enables the Tribunal to make orders to settle disputes or rectify complaints. Relevantly, s 232 SSMA provides that an Owners Corporation has 2 months to exercise a requested function, and the Tribunal's order compelled the Appellant to convene a meeting within that period of receiving the proposed licence agreement from the Respondents.
On 10 December 2019, I refused an application for a stay of the order. In doing so, I made the following relevant findings: 1. At [5] that: "…the appellant's Notice of Appeal lacked particularity in identifying the errors alleged to have been made by the Tribunal below. However, I was informed that it had asked for reasons for the decision from the Tribunal, which have not yet been received. Unfortunately, the appellant indicates that the reasons were requested more than 28 days ago and that the Tribunal has not complied with its obligation under s 62(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act"). Whilst I do not need to deal in this application with the appellant's argument that this, in itself, means that the Tribunal has failed to provide adequate reasons and thereby that an error on a question of law is established, I do accept that the lack of particularity in the Notice of Appeal should not weigh against the appellant in those circumstances."; 2. At [11] that: The appellant submitted that it would be put to unnecessary expense and inconvenience in convening a meeting in accordance with Order three. Further, it submitted that it would be prejudiced if a stay is not granted and that "any general meeting that may be convened and resolutions made pursuant to orders that are unsuccessfully appealed may be of no force and effect as the owners corporation was forced to carry out a meeting when they should not have been." No authority for this last proposition was provided and, given that Order three does not speak to the nature of any decisions to be made by the appellant, but rather requires it to consider the licence, I did not find it persuasive.

An extension of time for filing the Respondents application and submissions on costs?

The Respondents were required to lodge their application for costs, and submissions in support of it, by 27 December 2019.
They lodged their application for costs and their submissions 11 days late, on 7 January 2019 and on 14 January 2019 applied for an extension of the time for compliance.
The Appellant objects to the extension of time sought by the Respondent.
They submit that the Respondent should not be granted the extension of time, given that they applied for an extension 18 days after the application was due to be filed.
Section 41 of the NCAT Act gives the Tribunal a broad discretion in relation to the extension of time.
In the circumstances of this matter, noting the short period of the delay, the intervening Christmas period and the lack of any alleged prejudice to the Appellants, who filed thorough submissions in response to the application, I will extend time for the filing of the application for costs and the accompanying submissions to 7 January 2020.

The position on costs

In the absence of some exceptions which do not apply here, the position with respect to costs in the Tribunal, including in the Appeal Panel, is that each party to proceedings is to pay their own costs: s 60(1) of the NCAT Act. However, the Tribunal may award costs if it is satisfied that there are 'special circumstances' warranting such an order: s 60(2) of the NCAT Act. That is, circumstances which are out of the ordinary but not necessarily extraordinary or exceptional: CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21.
Section 60(3) of the NCAT Act states that in determining whether there are special circumstances warranting an award of costs the Tribunal may have regard to the matters set out in subsections (a) to (g).

The Respondents' submissions on costs of the stay application

The Respondents submissions were, helpfully, catagorised by the considerations set out in s 60(3) of the NCAT Act and were as follows:

[W]hether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings

The Respondents cite the well-recognised principle that, prima facie, the party who obtained the original order should be allowed to enforce it. They submit that they should not be disadvantaged by what they referred to as an application that was weak and in which there were no real prospects of success. They submit that stay application was lodged in the hope of gaining a respite against immediate execution of the procedural direction the Tribunal had made.

[W]hether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings

The Respondent's submit that the application for a stay was an attempt to delay further the time taken to complete the proceedings and resolution of the issue between the parties, contrary to the guiding principle of the Tribunal - "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 36(1) of the NCAT Act.

[T]he relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law

The Respondents submit, correctly, that the Application for a Stay did not identify any grounds on which the stay was sought, other than by reference to the Appellant having filed a Notice of Appeal and referring to it in the stay application. They cite the well-established principle that just because an appeal has been lodged does not provide justification for the granting of a stay and submit that the Notice of Appeal and Application for a Stay did not demonstrate a tenable basis for the stay to be granted.

[T]he nature and complexity of the proceedings

The Respondents submit that the nature and complexity of the proceedings are such that significant additional input of time and costs have been incurred by the Respondent making the proceeding more complex than would ordinarily be the case but do not buttress that submission with relevant evidence, or point to any specific matters that support their submission.

[W]hether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance

The Respondents submit that the Appellant had consented to the order now subject to the appeal and the application for a Stay.

[W]hether a party has refused or failed to comply with the duty imposed by section 36 (3) of the NCAT Act.

The Respondents referred to the onus on parties and representatives to participate in the process and comply with the directions and orders of the Tribunal. They submit that the Appellants' stay application is not commensurate with that above principle, given that I found that the interest of justice did not warrant a stay.

[A]ny other matter that the Tribunal considers relevant

The Respondent's referred to Ruddock v Vardalis (No 2) (2001) 115 FCR 229, in submitting that the discretion to award costs is broad and unfettered and it must be exercised judicially.

Appellant's Submissions

The Appellant resists the application for costs
Its submission may be summarised as follows: 1. That the Appellant was prejudiced by the Tribunal's failure to provide reasons within the time required by s 62(2) of the NCAT Act, in that it prevented proper articulation of the grounds of appeal; 2. That I should consider the finding I made in the Application for a Stay that the Appeal was not without merit; 3. That the proceedings were not conducted in a way which caused disadvantage to the Respondents or which unnecessarily prolonged the proceedings; 4. That the reference to a claim having "no tenable basis in in fact or law" in s 60(3)(c) should be considered in the context of the decision of the Appeal Panel in Winne Avenue Property Pty Limited v MCHQ Pty Limited [2018] NSWCATAP 197 at [36] where the Appeal Panel said: The language of s 60(3) (c) of the [Act] was whether the claim or defence has 'no tenable basis in fact or law'; not whether WAP's potential defence was 'likely to succeed'. Whether a defence is 'likely to succeed' is a much higher threshold to cross than 'no tenable basis in fact or law'. In our view, by itself, mounting a defence which is not likely to proceed would not be sufficient to warrant a conclusion that there were special circumstances within the meaning of s. 60(2). and; 1. That there was nothing complex in the conduct of the stay application and that the proceedings were not so obviously untenable or manifestly groundless as to be utterly hopeless": citing Attorney General v Wentworth (1988) 14 NSWLR 481.

Decision

As I found in dismissing the Application for a Stay, on the evidence I was referred to from the transcript of the decision below I was satisfied that the Appellant acquiesced in the making of the order by the Senior Member under appeal, rather than consenting to it.
I was also satisfied that the lack of particularity in the Notice of Appeal could be attributed, at least in part, to the Appellant not having the reasons of the Tribunal below, by the time the notice had to be lodged.
In relation to the other issues I should consider, I am not satisfied that the application was conducted in a way which caused disadvantage, or added complexity or delay to the proceedings. It was dealt with on the basis of concise written and oral submissions from the parties' respective legal representatives on the day of the first call-over of the Appeal. Further, the principles applied by the Tribunal in considering an application for a stay are now well settled, and were not materially in dispute.
Whilst I did not grant the stay, it was not on the basis that I was satisfied that the application was untenable. The determining factor in my decision was that I was not satisfied that the stay was required to prevent the appeal being rendered nugatory.
In summary, I am not satisfied that there is anything 'out of the ordinary' about the nature or conduct of the application, such that special circumstances have been established warranting an order for costs being made.

Order 1. A hearing of the application for costs is dispensed with. 2. The application 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. 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: 28 February 2020

The Owners - Strata Plan No 70871 v Turek

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Judgment (15 paragraphs)

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