Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners-Strata Plan No. 54026 v Kastri Aev Pty Ltd [2024] NSWCATAP 161 Hearing dates: 13 February 2024 with written submissions by 21 June 2024 Date of orders: 19 August 2024 Decision date: 19 August 2024 Jurisdiction: Appeal Panel Before: G Burton SC, Senior Member C Mulvey, Senior Member Decision: (1) Order that a hearing on costs be dispensed with. (2) Make no order as to the costs of the appeal. (3) Note the effect of s 104 of the Strata Schemes Management Act 2015 (NSW) in favour of the respondent as successful in the appeal proceedings. Catchwords: REAL PROPERTY – STRATA MANAGEMENT – effect of Strata Schemes Management Act 2015 (NSW) s 104 Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Strata Schemes Management Act 2015 (NSW) Cases Cited: Owners SP 74698 v Jacinta Investments PL [2021] NSWCATAP 387 Texts Cited: None cited Category: Costs Parties: The Owners-Strata Plan No. SP54026 (Appellant) Kastri Aev Pty Ltd (Respondent) Representation: Mr S Garcia, Sparke Helmore Lawyers (Appellant) Ms K Vadakis (Sole director and authorised representative of Respondent) File Number(s): 2023/00363159 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 19 October 2023 Before: D Bluth, Senior Member File Number(s): SC 23/36562 decision 1. In our substantive decision [2024] NSWCATAP 119 issued 25 June 2024 we found that the original application was filed out of time under s 106(6) of the Strata Schemes Management Act 2015 (NSW) (SSMA) by a period of weeks but that we should not depart from a differently-constituted Appeal Panel's decision in Hua Nan Trading PL v Owners SP 32396 [2023] NSWCATAP 66 that s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) empowered the Tribunal to extend time for filing of the original application to and including its date of actual filing and that we had power under s 81 of the NCAT Act to make that order. We considered that the facts justified such an extension of time on application of the principles in Jackson v Land and Housing Corporation [2014] NSWCATAP 22. 2. We made provision for any application in respect of costs of the appeal, including whether or not a further hearing on costs was sought. Neither party sought such a further hearing and we have dispensed with a hearing on costs and determined costs on the papers. 3. Our substantive decision was in the context that the limitation argument was the only ground of appeal and was overcome by the grant of extension of filing time for the original application. In those circumstances we consider and find that the respondent lot owner (the original applicant) was successful in the appeal proceedings. 4. In its written submissions filed 15 July 2024 the appellant OC sought that there be no order as to costs (with the intention that each party bore its own costs). 5. The OC pointed out that, in an email dated 9 July 2024, the respondent sought only an order pursuant to SSMA s 87 exempting the respondent from contributing payment towards the OC's legal costs incurred in the proceedings, and attached various invoices for legal fees in the present and other proceedings where the respondent sought legal advice. The OC also pointed out that there was no leave for legal representation applied for by the respondent, the respondent did not actively seek a costs order for payment, the grant of leave for legal representation for the OC came with the condition that the OC did not seek a costs order and that the clear intent was to protect both parties against a costs order. 6. We respectively agree with the OC's inference but, more importantly, do not make a costs order which the successful party has not sought and where the successful party did not in any event seek leave for legal representation. 7. SSMA s 87 does not, with respect, appear to be apposite to what the respondent's other request sought to achieve. 8. The following position has been relevantly determined by the Appeal Panel in Owners SP 74698 v Jacinta Investments PL [2021] NSWCATAP 387 at [180]-[208]. 9. First, SSMA s 232 supports the making of an order quarantining lot owners against contributions (from the existing funds of an owners corporation or from levies) to pay damages and costs orders against the owners corporation in favour of the lot owners. 10. Secondly, SSMA s 104 operates of its own force, without need for orders, to quarantine successful lot owners from contributing (from the existing funds of an owners corporation or from levies) to the owners corporation's costs and expenses in the proceedings. 11. Thirdly, it is appropriate, if there is a separate determination on costs and expenses in the proceedings, to reserve for that determination any dispute as to the operation of SSMA s 104 in terms of whether the lot owner is successful in the proceedings and the owners corporation unsuccessful in the proceedings, even if that appears reasonably clear. What is not the subject of such quarantining is expenditure from existing funds or from levies to fund remedial work to common property. 12. As we have already found, the respondent was successful in the proceedings. The apposite provision, SSMA s 104, does not require a Tribunal order since it operates from statutory force. It is nevertheless useful for that to be recorded as the respondent raised the point, albeit under a less apposite provision. Orders 1. We make the following orders: 1. Order that a hearing on costs be dispensed with. 2. Make no order as to the costs of the appeal. 3. Note the effect of s 104 of the Strata Schemes Management Act 2015 (NSW) in favour of the respondent as successful in the appeal proceedings. ********** 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 19 August 2024 - No 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: 19 August 2024