Shoal Bay Developments v Community Association DP 270468 [2020] NSWCATCD 22

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Shoal Bay Developments v Community Association DP 270468 [2020] NSWCATCD 22 Hearing dates: 6 November 2019 Date of orders: 22 January 2020 Decision date: 22 January 2020 Jurisdiction: Consumer and Commercial Division Before: K Ross, Senior member Decision: Shoal Bay Developments Pty Ltd and Snoogal Pty Ltd are to pay to the Community Association DP 270468 the Community Association's costs of these proceedings, on the usual basis, as agreed or assessed. Catchwords: COMMUNITY ASSOCIATIONS — Costs — Application of Rule 38 to application under s 83 of Community Land Management Act — Special circumstances — Application withdrawn after hearing and before decision Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules (NSW) Cases Cited: The Owners Corporation Strata Plan No. 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256 Texts Cited: Nil Category: Costs Parties: Shoal Bay Developments Pty Ltd (First Applicant) Snoogal Pty Ltd (Second Applicant) Community Association DP 270468 (Respondent) Representation: Counsel: Mr Preece (Applicants)

Solicitors: JS Mueller & Co Lawyers (Respondents) File Number(s): SCS 19/09853 Publication restriction: Nil

REASONS FOR DECISION

Application 1. By application filed on 25 February 2019 the applicants, who are lot owners in the community scheme, ("the Lot Owners") sought the following orders against the Community Association: 1. An order pursuant to s 83 (1) (a) of the Community Land Management Act 1989 that a contribution levied and/or proposed to be levied for water service, sewer service and water usage is too much, and 2. An order pursuant to sec 83 (2) (b) of the Act for the payment of a different amount, being an amount of $nil, by the Lot Owners to Community Association DP 270468 for water service, sewer service and water usage, and 3. An order pursuant to s 83 (4) (b) of the Act that for contributions wholly and/or partly paid by the Lot Owners to Community Association DP 270468, an order to pay less imposes a duty on the Community Association to refund the difference to the Lot Owners. 1. The matter was listed for directions on 12 April 2019. The Community Association's legal representative appeared via an agent and sought an adjournment of the directions hearing to enable consideration of a motion at a meeting on 16th April 2019 in respect of the defence of the application. Directions were made for the filing of points of claim and points of defence and the applicants' costs of the appearance were reserved. 2. On 24 May 2019 directions were made for the exchange of evidence and leave was granted for summonses to be issued. The summonses were returnable on 4 July 2019 when access orders were made. The matter was listed for directions on 8 August 2019, when it was adjourned for hearing. 3. At the formal hearing on 6 November 2019 both parties were legally represented, the Lot Owners by counsel. At the beginning of the hearing the Lot Owners' counsel indicated that the Lot Owners conceded that the Limitation Act applied to the claim. 4. At the commencement of the hearing I raised with the parties my preliminary view that s 83 of the Act did not empower the Tribunal to make the orders sought. The Community Association's lawyer stated that he agreed with my preliminary position. The hearing proceeded. At the conclusion of the evidence, the decision was reserved and directions were made for written submissions to be filed. 5. On 8 November 2019 the Lot Owners advised the Tribunal that the application was withdrawn and on that basis it was dismissed. 6. On 15 November 2019 the Community Association indicated that it wished to pursue an order that the Lot Owners pay the Community Association's costs. Directions were made for the exchange of submissions. This is the decision in respect of the Community Association's cost application.