Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Young v The Owners – Strata Plan No 57860 [2022] NSWCATCD 190 Hearing dates: 16 September 2022 (Oral reasons delivered on day of the hearing) Decision date: 21 October 2022 Jurisdiction: Consumer and Commercial Division Before: S Thode, Senior Member Decision: (1)The Tribunal orders that they respondent pay to the applicant the costs of and incidental to the proceedings, such costs in the sum of $5188.54 are payable by 14 October 2022. (2)The remainder of the application as otherwise dismissed by reason of its withdrawal under section 55(1)(a) of the Civil and Administrative Tribunal Act 2013. Catchwords: Costs - special circumstances Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2013 Category: Principal judgment Parties: Michael Young (Applicants) The Owners – Strata Plan No 57860 (Respondent) Representation: Applicant in person Mr Fairholm, Solicitor (Respondent) File Number(s): SC 22/36485 Publication restriction: Nil reasons for decisioN Background 1. The applicant commenced proceedings by way of a strata schemes application dated 6 March 2022. 2. In the section "what orders do you want" the applicant stated as follows: The applicant seeks orders under section 237 for the appointment of a strata managing agent; orders under section 237 [of the Strata Schemes Management Act 2015] to confer other functions on the strata managing agent and orders under section 106(5) of the Act requiring the owners corporation to pay $3701 to the applicant to replace damaged new carpet sustained as a result of the owners corporation not attending to the deluge and inundation that occurred on 11 April 2021 in a timely competent and or reasonable way resulting in a mould infestation to apartment 1001 being reasonably foreseeable loss suffered by the applicant as a result of the owners corporation's negligence. 1. In addition the applicant sought orders under section 188 of the Strata Schemes Management 2015 (the Act) for the provision of documents. 2. At the hearing of the application on 15 September 2022 it transpired that most of the repairs sought by the applicant had already been completed by the owners corporation and ultimately the applicant withdrew his application. 3. The applicant did, however, press his application for costs pursuant to section 60 of the Civil and Administrative Tribunal Act 2013. 4. I heard and determined the applicant's application for costs and awarded costs in favour of the applicant. I made orders in accordance with orders 1 and 2 above. After the conclusion of the hearing I was provided with the applicant's request for written reasons. I obtained a recording of the afternoon's proceedings and I have transcribed the oral reasons for decision as best I was able. 5. This is the transcribed and slightly corrected version of that recording: 6. "In this case, I am in a position to deliver short oral reasons for decision. 7. In the exercise of my discretion under section, 60 of the Civil and Administrative Tribunal Act 2013, I am of the view that the applicant should be awarded his costs. 8. The costs are quite reasonably limited to the cost of an expert report in the sum of in the sum of $4857.60, which is evidenced by an invoice showing that amount, tendered by the applicant and served on the respondent. In addition the applicant seeks reimbursement of the postage costs incurred by the applicant and a filing fee of $108.33. The costs order he seeks is limited to that. 9. The applicant, quite rightly, said he never retained lawyers and does not seek extensive legal costs, to the benefit of the owners corporation, but expended 'hundreds of hours of my own time' rather than obtaining expensive legal advice. In the exercise of my discretion, I am of to view the applicant acted reasonably in obtaining an expert opinion in support of his application. 10. I now turn to my reasons for decision under section 60 of the NCAT Act. 11. Section 60 of the Civil and Administrative Tribunal Act prescribes as follows: 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), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may-- (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014 ) or on any other basis. (5) In this section-- "costs" includes-- (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal. 1. I note that in making his submissions the applicant only presses subsection 3(b) 'whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings'. 2. I am satisfied that the owners corporation has taken an unreasonably long time to complete the proceedings. 3. I note that the applicant is the beneficiary of a work order made in his favour on 10 January 2022. [The work order was not read onto the oral reasons but I have taken the liberty to insert the order as it is relevant to the reasons for decision]. 4. On 10 January 2020 the following orders were made by Senior Member G Burton: 1. Order that on or before 21 February 2022 the respondent owners corporation owners SP 57860 carry out a complete: (a) the repairs to the common property consequent and to prevent further water entry into the applicant lot to Michael Youngs lot; And (b) to remediate the water damage and mould growth within the lot owners lot arising from or relating to the water entry the subject of the repairs in (a). 1. It is common ground that the orders were not complied with by 21 February 2022 and by April 2022 the applicant was forced to bring further proceedings. 2. I have had regard to the respondent's legal submissions that the Tribunal order was not complied with because the owners corporation had "subrogated" the claim to its insurer by making a claim on the insurance policy and was therefore unable to comply with an order of the Tribunal or to repair and maintain the water ingress to common property and the applicant's lot property. 3. I am of the view that it was not reasonable of the owners corporation to assert that by lodging an insurance claim the owners corporation has complied with a legal and statutory obligation under section 106 of the Strata Schemes Management Act 2015 to "repair and maintain" common property. The words to repair and maintain are critical in this issue. To make an insurance claim and to wait for the insurance assessor to come along and assess the claim and to see whether the insurer wants to accept the claim, to wait if they accept indemnity and to 'subrogate' that duty to the insurer; to then wait for a building company to be appointed by the insurer is not "repairing and maintaining" common property. Repairing and maintaining are verbs, they have a specific meaning conveyed under the normal canons of statutory interpretation and construction. That is to say that it is the duty of the owners corporation to "repair and maintain" not delegate that duty to an insurer, particularly in light of the water ingress event that happened in April 2021. 4. The additional factor in this case that leads me to make an order for special circumstances is that there was indeed an "Order" of the Tribunal, and that there is quite rightly a concession made by the solicitor for the respondent that there has been a failure to comply with Orders 1(a) and 1(b) and the concession that remedial works were not completed by the respondent in the time frame provided. 5. There were other breaches of the Order prompting the applicant to seek orders for penalties under section 247A of the Civil and Administrative Tribunal Act that were withdrawn before these proceedings were listed for hearing today. Although the application for penalty under s247A was withdrawn, it is however relevant in the exercise of my discretion whether or not the owners corporation acted reasonably in the disposal of this application. 6. There was a non-compliance and the owners corporation did not do as it was ordered, there was nothing done between April and August 2021, which ultimately lead the applicant to commence the next application in a row of applications. 7. The delay caused by the owners corporation's unwillingness to simply repair, the defect is what has in my view led to the unnecessary prolonging of the proceedings, and the necessity for the applicant to bring these proceedings and the prolonging of the proceedings. While I do not necessarily agree with Mr Young's submission that because he is in London, he did not have a choice, but to get an expert report, I see that that is a fallible argument. It is not the owners corporation's liability to pay for a lot owners' expert report because they live elsewhere and they choose to have property in Australia. However, having said that, there was no evidence supporting the allegation that Mr Young acted unreasonably by insisting that his flat or his lot property be repaired, and I see how in those circumstances it may have been necessary for him, to satisfy himself that the work was, indeed, done properly, and done in accordance with the satisfaction of the statutory requirement and the Order of the Tribunal and I do not think that this was unreasonable [to incur the expense of an expert report]. 8. I also am a little worried about the submission that Mr Young acted unreasonably and that he was the cause of the delay without a skerrick of evidence that he did so, other than making a generalised submission that he was unreasonable. I was not taken to any emails or correspondence that supported that contention and I reject it. 9. Ultimately it is in my discretion to award costs, and on this occasion, I am not satisfied that the owners corporation acted reasonably by obtaining an insurance assessor [instead of repairing and maintaining common property]. The respondent lodged an insurance claim and that is all that it did in the discharge of its statutory obligation. 10. On this basis, and in the exercise of my discretion, I make an order for costs in these proceedings as limited to the amounts, set out by Mr Young. That completes the hearing this afternoon. Mr Young I will make an order for the cost specific to the amounts that I have ordered. Other than that there will not be an order for costs and I will otherwise mark the application as dismissed by reason of its withdrawal. Orders 1. The Tribunal orders that they respondent pay to the applicant the costs of and incidental to the proceedings, such costs in the sum of $5188.54 are payable by 14 October 2022. 2. The remainder of the application as otherwise dismissed by reason of its withdrawal under section 55(1)(a) of the Civil and Administrative Tribunal Act 2013. 1. The Tribunal notes that the strata manager will make inquiries concerning the fire rating of the applicant's lot door and if necessary ensure that the fire rating tag on the door or on the certificate provided to the applicant is corrected if a typographical error has occurred. ********** 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 Amendments 08 September 2023 - Formatting amendments. 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: 08 September 2023