Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bruce v Knight (No 2) [2021] NSWCATAP 254 Hearing dates: On the papers Date of orders: 31 August 2021 Decision date: 31 August 2021 Jurisdiction: Appeal Panel Before: R C Titterton OAM, Senior Member A Boxall, Senior Member Decision: 1. A hearing is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The respondents are to pay the appellants' costs of the appeal (2021/00056122) as agreed or as assessed. 3. The respondents are to pay the appellants' costs' of the proceedings at first instance (SC 20/26294) as agreed or as assessed. Catchwords: LAND LAW – strata title – common property – common property rights by-law – whether unreasonable refusal to consent Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) – s 60(3) Cases Cited: Bruce v Knight [2021] NSWCATAP 224 CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 914 Gelder v The Owners – Strata Plan 38308 [2021] NSWCATAP 109 Category: Costs Parties: Anthony Bruce, First Appellant The Owners – Strata Plan 208, Second Appellant Alexander Knight and Cleo Knight (Respondents) Representation: Solicitors: Sachs Gerace Lawyers, Appellants Strata Title Lawyers, Respondents File Number(s): 2021/00056122 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: n/a Date of Decision: 21 January 2021 Before: S Thode, Senior Member File Number(s): SC 20/26294 REASONS FOR DECISION Summary 1. On 23 July 2021, we published our reasons for allowing the appellant's appeal: Bruce v Knight [2021] NSWCATAP 224 (the Appeal Reasons). 2. The appellants have subsequently sought an order that the respondent pay their costs of the appeal, and their costs at first instance (being proceedings SC 20/26294). 3. In summary, the appellants submit that there are special circumstances warranting an award of costs. The respondents dispute this, and say that each party should pay their own costs. 4. For the following reasons we have decided to order the respondents to pay the appellants costs of the appeal and the proceedings at first instance as agreed or as assessed. Preliminary 1. The parties agreed that the issues for determination could be adequately determined without a hearing and by the Tribunal considering any written submissions filed by them. 2. Accordingly, the Tribunal makes an order pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) dispensing with a hearing. Appellants' submissions 1. The appellants correctly submit the Tribunal may award costs if there are special circumstances, NCAT Act, s 60(3). 2. In summary, the appellants rely on ss 60(3)(c), (d), (e) and (g), namely: * 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 (s 60(3)(c)); * the nature and complexity of the proceedings (s 60(3)(d)); * whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance (s 60(3)(e)); * any other matter that the Tribunal considers relevant (s 60(3)(g)). Respondent's submissions 1. In summary, the respondents submit that there are two primary bases on which the appellants seek costs. The first is that the respondent maintained an untenable position; the second is that the appellants were forced to be contradictors. The respondents say that neither proposition should be accepted by the Appeal Panel, and their primary submission is that the application for costs be dismissed and each party pays its own costs. They said submit that there are no special circumstances that warrant the making of an order for costs in favour of any party. Consideration Costs of the appeal 1. The appellant's submitted that, given their success on appeal, the way the respondent's "ran their case" before the Tribunal at first instance "was flawed and had no tenable basis". We reject that submission, which exaggerates the position. In our view, the respondent's stance and approach was clearly arguable. 2. The appellant's say that they were forced to be contradictors. The point is developed at some length in the written submissions, but the respondents submit the submission is a "baseless allegation", not grounded in evidence and conclusions based on speculation. We agree. 3. Neither of these matters favour a finding of "special circumstances". 4. Nor does reliance on s 60(3)(e). The submission that the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance is rejected. 5. However, there is substance in the appellants' reliance on s 60(3)(d) of the NCAT Act, namely the nature and complexity of the proceedings. 6. In this respect the appellants rely on the decision of Gelder v The Owners – Strata Plan 38308 [2021] NSWCATAP 109 at [13]. We think that pars [12] and [13] are persuasive and relevant to repeat: 12. We will deal firstly with the costs incurred with respect to the appeal. The principles concerning the identification of special circumstances have been the subject of many decisions within the Tribunal. The decision in eMove Pty Ltd was drawn to our attention. In that case the Appeal Panel held that special circumstances are circumstances that are out of the ordinary. They do not have to be extraordinary or exceptional (see [48]). That view is one with which we respectfully agree and note it is consistent with many other Appeal Panel decisions of the Tribunal. 13. In our view, the complexity of the dispute between the parties and its significance to the parties could be fairly described as out of the ordinary. The nature of the dispute and its importance to the parties is a matter we consider relevant to the determination of special circumstances. Those characteristics are matters falling within s 60(3)(g). In addition, the dispute can be fairly described as falling within subsection (d) by reason of its complexity and importance. We are also satisfied that the dispute can be categorised as falling within the provisions of subsection (c). This is because we held that the submissions of Respondent were to be rejected having regard to our view that the Tribunal's decision at first instance was legally unreasonable. We also held that the finding that the Appellant had unreasonably refused consent to the bylaw was unreasonable having regard to the late amendment to the bylaw. In our view the Appellant was comprehensively successful in the appeal and, for the reasons above given, we are of the opinion that special circumstances exist warranting an award of costs. 1. Gelder was also an appeal concerning the making of a common property rights by-law. 2. We consider that the Appeal Panel's reasoning at [13] equally apply in the circumstances of this appeal. We think it clear that the appeal involved complex and difficult issues, including an analysis of many authorities. The proceedings at first instance and on appeal concerned a dispute over valuable property rights in a strata scheme. We accept the appellants' submissions that the issues concerned whether the respondents should be entitled to carry out major renovations in a historic building that included the grant of exclusive use over a substantial part of a common property light atrium, various other parts of common property; the right to remove tiling identified as having heritage significance and the right to substantially alter the methods of access and egress to the lot. 3. We note that the parties sought and obtained leave to have legal representation. On appeal the parties were representative by senior counsel and a senior junior counsel. 4. These issues were complex and were of significance to the parties. We think the issues were sufficiently complex to establish special circumstances warranting an award of costs. As both parties submitted, those circumstances do not have to be extraordinary or exceptional, they only need be out of the ordinary: eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 914; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21. Costs at first instance 1. We note that in Gelder the Appeal Panel, in upholding the appeal and ordering costs, also ordered the respondent to pay the appellant's costs at first instance. Its reasoning was as follows: 15. We are of the view that for the same reasons as we have described with respect to costs of the appeal, in respect of the proceedings at first instance special circumstances exist warranting an award of costs. In other words, we are of the opinion that the proceedings at first instance were complex, of significance to the parties and that the Respondent's position lacked substance. … 17. … Having lost below with an order that the application be dismissed, the Appellant is, in our view, entitled to seek from the Appeal Panel consideration of her costs application made at first instance. We are satisfied that it is appropriate to award costs at first instance, on the basis of the fact that special circumstances exist warranting an award of costs with respect to the first instance proceeding. 1. We see no reason why we should not make a similar order in this appeal. 2. In doing so, despite the statements of Gelder, any case depends upon on its own particular facts: Gizah Pty Limited v AXA Trustees Limited (No. 2) [2001] NSWADT 164, and will depend on the circumstances of the individual case: Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152. Other 1. In the Appeal reasons we stated: 4. The parties before the Tribunal were: Alexander and Cleo Knight, as applicants; The Owners - SP 208, as first respondent; Anthony Bruce, as second respondent. 5. According to the Notice of Appeal and Amended Notice of Appeal, the Appellants are Mr Anthony Bruce, Dr Stephen Nash and Dr Liza Rybak, while the respondents (correctly) are Alexander and Cleo Knight. … 7. The respondents below who are now appealing are The Owners - SP 208 and Anthony Bruce. Unless an application to be joined as parties is made, they and they alone are correct appellants to the appeal. As no application to be joined to the appeal proceedings has been made, Dr Stephen Nash and Dr Liza Rybak are not parties to the appeal. 8. In these reasons we will refer to the appellants collectively as "the owners corporation", and the respondents as "the Knights". 1. In their submissions, the appellants pointed out that by order of the Tribunal on 25 August 2020 in the proceedings at first instance, Dr Nash and Dr Rybak had been joined as respondents, and accordingly were in fact appellants in the appeal. 2. We are satisfied that submission is correct. Accordingly, pursuant to s 63 of the NCAT Act we amend pars [4] to [8] of the reasons of the Appeal Reasons so as to read: 4. The parties before the Tribunal were: Alexander and Cleo Knight, Dr Stephen Nash and Dr Lisa Rybak as applicants; The Owners - SP 208, as first respondent Anthony Bruce, as second respondent. 5. … 6. … 7. … 8. In these reasons we will refer to the appellants collectively as "the owners corporation", and the respondents as "the Knights". Orders 1. The Appeal Panel orders: 1. A hearing is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The respondents are to pay the appellants' costs of the appeal (2021/00056122) as agreed or as assessed. 3. The respondents are to pay the appellants' costs of the proceedings at first instance (SC 20/26294) as agreed or as assessed. ********** 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: 31 August 2021