The Owners Strata Plan no 74482 v YNW (No 2) [2025] NSWCATAP 247 | Case summary

NCAT Appeal Panel|2025-10-08|Before: S Westgarth, Deputy PresidentR Alkadamani, Senior Member

This decision concerns whether we should make an order for the Respondent's costs of the appeal to be paid by the Appellant.
On 15 July 2025 we published our decision in the substantive appeal. The appeal was dismissed and we made directions for the Respondent to file and serve submissions, if she sought costs of the appeal. The Respondent has lodged such submissions. Although the directions permitted the Appellant to lodge submissions in reply, no such submissions have been received.
Accordingly, we have considered the Respondent's submissions and what follows is our determination as to whether the Respondent should have her costs of the appeal paid by the Appellant.
It is necessary to add that the appeal arose out of a decision made on 19 February 2025 when the Tribunal refused the application of the Appellant for an adjournment of the hearing. Having refused the adjournment application, the Tribunal went on to consider the Respondent's application and the Tribunal made orders for the Appellant to undertake certain work. The context in which the proceedings arose is this: the Respondent to the appeal owns a lot in the Strata Plan constituted by the Appellant. The originating application lodged in the Consumer and Commercial Division of the Tribunal was lodged by the Respondent in which the Respondent sought orders for certain work to be undertaken by the Appellant. The orders made by the Tribunal required the Appellant to engage a suitably qualified contractor to carry out remediation works to the common property and lot property.

The Respondent submits that the following special circumstances arise and the Appeal Panel should therefore make a costs order in her favour:

(1) The Appellant's conduct in lodging the appeal and persisting with it after receipt of the Respondent's reply and submissions meant that the Appellant has been responsible for prolonging unreasonably the time taken to complete the proceedings. This submission is based upon s 60(3)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

(2) It should have been clear to the Appellant that there was no tenable basis, either law and/or fact to the appeal. This submission relies on the special circumstances described in s 60(3)(c) of the NCAT Act.

(3) The Respondent also relies upon s 60(3)(e) of the NCAT Act and submits that the appeal was misconceived or lacking in substance. It is submitted that the Appellant adduced no evidence to demonstrate prejudice or to establish that there had been an error of law or a failure by the Tribunal to afford the Appellant with natural justice and/or procedural fairness.

(4) The Respondent further submits that the Appeal Panel should have regard to the strict nature of the Appellant's duty to repair and maintain, property pursuant to s 106(1) of the Strata Schemes Management Act 2015 (NSW) (the Strata Act). This ground relies upon s 60(3)(g) of the NCAT Act which provides that in determining whether there are special circumstances warranting an award of costs the Tribunal may have regard to "any other matter that the Tribunal considers relevant". In this context "any other matter" is intended to refer to matters other than those described in s 60(3)(a) to (f).

(5) It is well established by many Tribunal reported cases that "special circumstances" means circumstances that are out of the ordinary but they do not need to be exceptional or extraordinary.

The general principle is that each party to proceedings in the Tribunal is to pay their own costs (s 60(1) of the NCAT Act).
However, the Tribunal may award costs in relation to proceedings before it "only if it is satisfied that there are special circumstances warranting an award of costs": s 60(2). Section 60(3) states that in determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the matters described in subsections (a) to (g). There are provisions in the NCAT Act and the relevant rules which enable costs to be awarded in the absence of special circumstances, but those provisions are neither relevant to these proceedings, nor does the Respondent submit that they are relevant.
Accordingly, the task before us is to determine whether there are special circumstances warranting an award of costs as contended for by the Respondent.
It is well established that an order for costs is made not to punish an unsuccessful party but rather to indemnify the successful party for the costs it has incurred.
In this case, the Appellant was ordered to undertake certain work in performance of its obligations under s 106 of the Strata Act. The Appellant was not successful on any of its grounds of appeal. We are of the view that there are special circumstances warranting an award of costs for the following reasons:

(1) By lodging and persisting with the appeal (which we held to be unmeritorious) the effect was to prolong unreasonably the time taken to complete the proceedings: s 60(3)(b).

(2) Further, and for the above reasons, the appeal may be described as lacking in substance in the sense that it was unmeritorious, particularly having regard to the duties of an owners corporation.

(3) Finally, there is force in the Respondent's submission that the Appellant had failed to provide evidence contradicting the expert evidence provided by the Respondent as to the nature of the work orders required to be made. That made it unlikely that the Respondent would have been unsuccessful in obtaining the orders it successfully obtained.

For the above reasons, we are satisfied that we should make an order that the Respondent's costs of the appeal should be paid by the Appellant.
In addition, it is necessary to say that both parties have been given an opportunity to make a submission as to whether we may determine costs on the papers and make an order dispensing with a hearing. The submissions of the Respondent are to the effect that we should dispense with a hearing and make this determination on the papers. We are satisfied that a hearing on costs is not required because we are satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions and the other material lodged with the Tribunal in these proceedings.
Accordingly, we make the following orders:

(1) A hearing on the question of what orders should be made in respect of costs of the appeal is dispensed with and the Appeal Panel makes its determination on costs on the papers.

(2) The Appellant is ordered to pay the Respondent's costs of the appeal on the ordinary basis as agreed between the parties or as assessed.

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

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.

Schemes Management Act 2015

The Owners Strata Plan no 74482 v YNW (No 2)

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