The Owners – Strata Plan 72347 v P&D Bush Pty Ltd [2019] NSWCATCD 69

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners – Strata Plan 72347 v P&D Bush Pty Ltd [2019] NSWCATCD 69 Hearing dates: On papers Date of orders: 17 July 2019 Decision date: 17 July 2019 Jurisdiction: Consumer and Commercial Division Before: S Hanstein, Tribunal Member Decision: (1) A hearing on costs is dispensed with in accordance with s 50(1)(c) of the Civil and Administrative Tribunal Act 2013. (2) The applicant is to pay the respondent's costs of the proceedings from 2 March 2019 on the ordinary basis, as agreed or assessed, but limited to a maximum amount of $5,000. Catchwords: Costs Legislation Cited: Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Rules 2014 Cases Cited: Foster v Byrnes [2016] NSWCATAP 197; Frederiksen v Port Stephens Veterans and Citizens Aged Care Limited [2014] NSWCATAD 52; The Owners – Strata Plan 4521 v Zouk & Anor [2007] NSWCA 243 Category: Costs Parties: The Owners – Strata Plan 72347 (applicant; respondent to costs application) P&D Bush Pty Ltd (respondent; applicant in costs application) Representation: Kerin Benson Lawyers (for the applicant) Mr Bush (for the respondent) File Number(s): HB 19/02576 Publication restriction: Nil

reasons for decision

Background 1. The substantive decision in this matter (HB 19/02576) was made on 17 April 2019, dismissing the application. The respondent subsequently made an application for costs.

Legislation and legal principles. 1. Section 60 of the Civil and Administrative Tribunal Act 2013 ("Act") provides, relevantly: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) 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. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the 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, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3) [that is, the duty to co-operate with the Tribunal to give effect to the Tribunal's guiding principle - to facilitate the just, quick and cheap resolution of the real issues in the proceedings - and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal.] (g) any other matter that the Tribunal considers relevant. 1. Guidance in consideration of costs applications under s 60 is provided by the decision of the Appeal Panel in Foster v Byrnes [2016] NSWCATAP 197, where it was stated (citations omitted): [50] The term "special circumstances" is not defined in the Act. It has been interpreted to mean circumstances that are out of the ordinary but not necessarily extraordinary or exceptional. The discretion to award costs must be exercised judicially having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs… [51] [The Tribunal] must decide whether the factors relied upon by [the party seeking costs] separately, or in combination, establish special circumstances warranting an award for costs in the appeal. 1. Rule 38 of the Civil and Administrative Tribunal Rules 2014 ("Rules") provides: 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: (a) the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under clause 10 (2) of Schedule 4 to the Act in relation to the proceedings, or (b) the amount claimed or in dispute in the proceedings is more than $30,000. 1. Clause 10 of schedule 4 to the Act relevantly provides: 10 Proceedings causing disadvantage (1) The Tribunal may exercise the powers conferred by this clause if the Tribunal is of the opinion that a party in any proceedings for the exercise of a Division function is conducting the proceedings in such a way that unreasonably disadvantages another party in the proceedings by any conduct (including by failing to comply with an order or direction of the Tribunal). (2) The Tribunal may: (a) if the party causing the disadvantage is the applicant—order that the proceedings (or part of the proceedings) be dismissed or struck out, or ... (3) Before making any order under subclause (2) against a party, the Tribunal is to have regard to the following: (a) the extent to which the party is familiar with the procedures of the Tribunal, (b) the party's capacity to understand, and act on, a direction of the Tribunal, (c) whether the party suffers from a disability, (d) whether the party is acting deliberately in failing to comply with the Tribunal's directions. (4) The provisions of this clause are in addition to, and do not limit, the provisions of section 55 (Dismissal of proceedings) of this Act.