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[2025] NSWCATAP 68
General information, not legal advice.
NCAT Appeal Panel
2025-04-02
G Blake AM SC, Principal MemberD Goldstein, Senior Member
Original judgment source is linked above.
38 Costs in Consumer and Commercial Division of the Tribunal
(1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal.
(2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if -
...
(b) the amount claimed or in dispute in the proceedings is more than $30,000.
38A Costs in internal appeals
...
(2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal.
"[28] Clause 38 gives the Tribunal a wide discretion to make an order for costs. It does not specify the factors the Tribunal must take into account in exercising the discretion, although the discretion to make such an order must be exercised judicially: see, for example, Ruddock v Vadarlis [2001] FCA 1865 at [9].
[29] Where an application has been heard and determined on the merits and Clause 38 applies, the appropriate starting point for the exercise of the discretion is not that the parties are to pay their own costs. Rather, it is the well-established position at common law; that is, that the purpose of making a costs order is to provide compensation to the party in whose favour the order is made for the expense the party has been put to in prosecuting or defending legal proceedings. In general terms, this means that a party who is successful is entitled to an order for costs in its favour, subject to exceptions generally involving misconduct on the part of that party: Latoudis v Casey [1990] HCA 59; [1990] 170 CLR 534; Oshlak v Richmond River Council [1998] HCA 11.
[30] In BNT Constructions Pty Ltd v Allen [2017] NSWCATAP 186 the Appeal Panel, having set aside a costs order made in the Consumer and Commercial Division, decided to re-exercise the costs discretion. Clause 38 was the applicable costs provision in that case. At [67] the Appeal Panel noted the following principles relevant to the exercise of the discretion:
(1) the starting point is that a successful party should be entitled to an order for costs in his favour;
(2) an award of costs is by way of an indemnity and not as punishment;
(1) WHD's claim for loss of rent based on the breach by OSP70276 of the duty in s 106(1) of the SSM Act (which corresponded to the first ground of appeal);
(2) WHD's claim for a work order in respect of lot 14 (which corresponded to the second ground of appeal);
(3) WHD's claim for loss of rent based on the creation of a nuisance by OSP70276 (which corresponded to the third grounds of appeal);
(4) WHD's claim for a work order in respect of the basement walls of lot 14 (which corresponded to the fourth ground of appeal).
(1) The appeal is allowed in part and otherwise dismissed.
(2) The orders made by the Tribunal on 26 August 2024 are varied by adding the following orders:
(a) 2A. The respondent is to arrange to have the work specified in the scope of works prepared by AD & B Pty Ltd, quotation number 052170423, carried out in Lot 14 by obtaining quotes from at least two builders and accepting one such quote within one calendar month, and having the work completed within three calendar months.
(b) 2B. The applicant (including its servants and agents) is to provide reasonable access to Lot 14 for that work and is not to delay, impede or obstruct that work.
(3) If any party wishes to make an application to vary order (2) above (the variation application):
(a) the applicant is to lodge and serve a variation application, including submissions limited to two pages, within seven days of this decision;
(b) the respondent to the variation application is to lodge and serve any submissions limited to two pages in response within 14 days of this decision;
(c) the applicant is lodge and serve any submissions in reply limited to one page within 21 days of this decision;
(d) the parties are to indicate in their submissions whether they consent to an order dispensing with an oral hearing of the variation application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted rather than the variation application being determined on the papers. If a hearing is not dispensed with, the parties will be advised of a date for the hearing of the variation application.
(4) The respondent is to pay one quarter of the costs of the appellant of the appeal on the ordinary basis.
(5) If any party wishes to make an application to vary order (4) above (the costs application):
(a) the applicant is to lodge and serve the costs application, including submissions limited to three pages and any evidence in support, within seven days of this decision;
(b) the respondent to the costs application is to lodge and serve any submissions limited to three pages and any evidence in response within 14 days of this decision;
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.
White House Developments Pty Ltd
The Owners - Strata Plan No 70276 [2025] NSWCATAP 68
Addenbrooke Pty Limited v Duncan (No 2) [2017] FCAFC 76; (2017) 348 ALR 1; (2017) 121 ACSR 406
Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385; [2020] FCAFC 50
Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734
Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404
Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39
Coscuez International Pty Ltd v Owners Strata Plan No. 46433 [2022] NSWCATAP 147
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Dart v The Owners - Strata Plan No. 71849 [2024] NSWCATAP 145
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36
John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69
Mastellone v The Owners - Strata Plan No. 87110 [2021] NSWCATAP 188
McElwaine v The Owners - Strata Plan 73975 [2017] NSWCA 239; (2017) 18 BPR 37,207
Medical Council of New South Wales v Mooney [2024] NSWCA 180
Minister for Immigration & Multicultural Affairs v Al‑Miahi [2001] FCA 744; (2001) 65 ALD 141
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd [2021] NSWCA 2
Pallas Bride and Fashion Pty Ltd v Evans [2017] WASCA 84
Ridis v Strata Plan 10308 (2005) 63 NSWLR 449; [2005] NSWCA 246
Silberstein v Strata Choice Pty Ltd & Hecker Australia Pty Ltd [2022] NSWCATAP 375
Southern Properties (WA) Pty Ltd v Executive Director, Department of Conservation and Land Management (2012) 42 WAR 287; [2012] WASCA 79
Tao v The Owners - Strata Plan No 16107 [2023] NSWCATAP 327
Tezel v The Owners - Strata Plan No 74232 [2021] NSWCATCD 132
Tezel v The Owners - Strata Plan No 74232 [2022] NSWCATAP 149
The Owners - Strata Plan 74232 v Tezel [2023] NSWCA 35; (2023) 20 BPR 43,119
The Owners - Strata Plan No 30691 v Pickard [2024] NSWCATAP 126
The Owners - Strata Plan No. 36613 v Doherty; Doherty v The Owners - Strata Plan No. 36613 [2021] NSWCATAP 285
The Owners Strata Plan 50276 v Thoo [2013] NSWCA 270; (2013) 17 BPR 33,789
The Owners - Strata Plan No 77559 v Touma; Touma v The Owners - Strata Plan No 77559 [2022] NSWCATAP 186
The Owners - Strata Plan 87003 v Raysons Constructions Pty Ltd [2025] NSWSC 66
Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204
Vella v Mir (No 3) [2020] NSWCATAP 17
Vickery v The Owners - Strata Plan No 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284
Yuen v Thom [2016] NSWCATAP 243
"[95] ... However, it is desirable for a notice of appeal in an appeal which is limited to questions of law to identify with precision what the question of law is. As was said in a similar context, "The questions of law are not to be distilled from the grounds of appeal": Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 at [21]. It is after all the claimed existence of the question of law which founds an appellant's entitlement to appeal as of right. Put another way, the first thing the appellate court must do is determine whether it has jurisdiction, and it will have no jurisdiction to determine the purported appeal on the merits unless it discloses a question of law.
[96] This is far from the first time the restrictions upon rights of appeal have been ignored. In Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [71] I referred to:
[97] These points have been made, repeatedly, by this Court in relation to various regimes where appeals are confined to questions of law: see Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22] ('necessary for the notice of appeal to identify precisely the particular question or questions of law'); Kudrynski v Orange City Council [2024] NSWCA 33 at [48] ('it is critical that an appellant clearly identify the question of law which is the subject of the appeal'); Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13] ('the respondent did not identify the questions of law that were the subject matter of the appeal, but rather asserted the magistrate erred in law in various ways. This was wrong'). ..."
"[26] The review above demonstrates that great care must be taken in drafting a notice of appeal to ensure that it is apparent, on its face, that the ground of appeal raises a question of law. If not, leave to appeal is necessary.
[27] Where, however, there is a question of law in substance, a court (and, it follows, an Appeal Panel) has discretion (to be exercised judicially and in the interests of justice) to direct its formal notification in an amended notice of appeal: Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 at [60]. In appropriate circumstances, the Appeal Panel may elect to waive the requirement to formally lodge an amended notice of appeal, given its mandate to act "with as little formality as the circumstances of the case permit ... without regard to technicalities or legal forms": NCAT Act, s 38(4); Wollondilly at [19]. Where the party is not legally represented, a more generous approach is warranted: Kudrynski at [50]-[51]. This is an aspect of ensuring procedural fairness."
"[23] The applicant submitted that s 106(6) of the SSM Act imposes an 'unusual' limitation period, in the sense that it is not directed to a cause of action but to the suffering of loss. Consistently with its terms, and noting the terms of s 106(5), the applicant submitted that the phrase 'first becomes aware of the loss' should be construed to mean the time at which the owner was first aware of the kind or type of loss that is subject of the complaint, here loss of rent."
"[29] The applicant's construction of s 106(6) of the SSM Act is the correct one. On that construction, the respondent first became aware of the loss in 2016. The action she commenced in the Tribunal on 6 November 2020 was out of time."
"[41] The time limit in s 106(6) of the SSM Act commences to run from the point that the owner 'first becomes aware of the loss'. Accepting, as both parties did, that s 106(6) is directed to actions brought under s 106(5), 'the loss' to which s 106(6) refers is the loss suffered as a result of the owners corporation's contravention of s 106(1). Consistently with the approach to statutory construction that strives to give every word of legislative provisions work to do (see, for example, Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [39], [41]-[42], [76] and [79]) the question posed by s 106(6) is, put simply: when did the lot owner first become aware of the loss that s 106(5) entitles a lot owner to recover (subject to establishing the elements of the cause of action) - here, loss of rent?
[42] The respondent's construction of 'the loss' in s 106(6) was 'the reasonably foreseeable loss that the owner is seeking to recover, that is, the loss referred to in s 106(5)' (emphasis added). As is apparent from the emphasised words, that construction conflates the loss that is the subject of the particular proceedings and the loss for which s 106(5) makes provision, and is circular in its effect. The requirement in s 106(5) that the loss be reasonably foreseeable is a form of remoteness limitation on what damages may be recovered. It is not part of the limitation period requirement in s 106(6). That provision refers to when the owner first became aware of the loss, not to when the owner first became aware the loss was reasonably foreseeable. The respondent's construction is thus not supported by the text."
"[207] It was common ground that whether a breach of a statutory duty gives rise to a civil remedy is a question of ascertaining the legislature's intention as a matter of construction of the relevant legislative language. In Sovar v Henry Lane Pty Ltd [1967] HCA 31; (1967) 116 CLR 397, which involved an action for damages for personal injuries brought by the plaintiff for breach of a provision of the Factories, Shops and Industries Act 1962 (NSW) relating to the fencing of dangerous machinery, Kitto J said, relevantly (at 404-405):
This passage was referred to with approval in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 460-461; Miller v Miller [2011] HCA 9; (2011) 242 CLR 446 at [29]; Field v Dettman [2013] NSWCA 147 at [39]."
"[26] It is critical to the respondent's case that it make good its contention that it owed the appellant only a statutory duty under the SSM Act in relation to its management and repair of the common property. It is only if that premise is made good that the respondent can rely on the holding in Thoo that Ch 5 of the SSM Act provides exclusive remedies for breach of an owners corporation's statutory duty as an answer to the appellant's claim in nuisance, and can argue that s 226 is not engaged on the ground that the appellant cannot rely upon a duty arising apart from the SSM Act. For the reasons which follow I do not accept that premise. Rather, an owners corporation, as legal owner of the common property, may owe a general law duty of care or a general law duty not to create or to abate a nuisance, and not merely a statutory duty that can be enforced only through the mechanisms provided in Ch 5 of the SSM Act. Contrary to the view of the primary judge, decisions of this Court do not support the view that such a general law duty is excluded. To the contrary, the decision in Ridis and in Owners - Strata Plan 21702 v Krimbogiannis [2014] NSWCA 411 proceed on the assumption that such general law duties can exist in addition to the statutory duty of repair. Thoo does not decide to the contrary. Neither the SSFD Act nor the SSM Act negate the rights of a lot owner or occupier of a lot to enforce an owners corporation's duty in respect of the management or repair of the common property that is owed to an owner or occupier of a lot in that capacity. The appellant's right to sue at common law is preserved by s 226. Accordingly, in my view the appeal should be allowed."
(2017) 348 ALR 1
(1990) 170 CLR 321
(2020) 275 FCR 385
(1990) 170 CLR 394
(1995) 184 CLR 163
(2000) 203 CLR 503
(2001) 206 CLR 323
(2005) 63 NSWLR 449
(2012) 42 WAR 287
(2020) 103 NSWLR 352
(2010) 241 CLR 320
(2010) 241 CLR 252
(1967) 116 CLR 397
(1995) 185 CLR 410
(2011) 242 CLR 446
(2011) 288 ALR 385
(3) there is no absolute rule that, absent disentitling conduct, a successful party is to be compensated by the unsuccessful party;
(4) the factors to be considered are not to be confined as to do so would constrain the general discretion;
(5) the relative success of the parties on different issues and the time taken to determine them may be relevant;
(6) the nature of the proceedings is relevant;
(7) the proper exercise of the discretion requires a decision maker to do justice between the parties and to exercise the discretion having regard to relevant considerations and in a manner which is not arbitrary and capricious.
[31] Generally, costs are awarded in favour of the successful party based on the outcome of the proceedings as a whole, without differentiating between particular issues on which the party may not have been successful. That said, a different costs order may be made if the losing party succeeds on significant issues: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [31]- [36]; Sydney Ferries v Morton (No 2) [2010] NSWCA 238 at [10]-[12]. The dollar amount of a particular claim does not determine its dominance in the proceedings. Rather, regard must be had to all of the work involved in prosecuting and defending the parties' various claims, including but not limited to the time taken up at the hearing.
[32] In Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256; (2011) 288 ALR 385, Campbell JA (with Macfarlan JA and Young JA agreeing) held at [107] that an issue or group of issues is "clearly dominant" when it is clearly dominant in the proceedings as a whole. In that case, the approach by counsel to analysing the percentage of costs between the parties - counting the proportion of paragraphs and pages devoted to each factual topic - was held at [84] to be "a highly artificial way of proceeding" which gave "a false air of mathematical precision".
[33] In relation to separable issues, a successful party's entitlement to the whole of the costs of the proceedings should not be discounted to allow for another party's success in a separate issue that played a very minor part in the proceedings as a whole: Macourt v Clark (No 2) [2012] NSWCA 411 at [7]. Further, in Hawkesbury District Health Service Ltd v Chaker (No 2) [2011] NSWCA 30 at [14], the Court of Appeal held that the severability of one issue on which the successful party failed is not, without more, sufficient to warrant departure from the general approach. The exercise of discretion will often depend upon matters of impression and evaluation: Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 at [11]."
(c) the applicant is to lodge and serve any submissions in reply limited to two pages within 21 days of this decision;
(d) the parties are to indicate in their submissions whether they consent to an order dispensing with an oral hearing of the costs application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted rather than the costs application being determined on the papers. If a hearing is not dispensed with, the parties will be advised of a date for the hearing of the costs application.
(6) The authorities of the parties may be returned.