Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners-Strata Plan No.100526 v Hamdan (No 2) [2025] NSWCATAP 16 Hearing dates: On the papers Date of orders: 22 January 2025 Decision date: 22 January 2025 Jurisdiction: Appeal Panel Before: A Bell SC, Senior Member G Ellis SC, Senior Member Decision: The application for costs is dismissed. Catchwords: APPEALS – STRATA TITLE- costs of appeal - no special circumstances warranting an award of costs Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Strata Schemes Management Act 2015 (NSW) Cases Cited: The Owners- Strata Plan No. 100526 v Hamdan [2024] NSWCATAP 222. Texts Cited: None cited Category: Costs Parties: The Owners – Strata Plan No. 100526 (Appellant) Rolla Hamdan (First Respondent) Charlie Hamdan (Second Respondent) Representation: Counsel: M Baroni (Respondents) Solicitors: Bannerman Lawyers (Appellant) Construction Legal (Respondents) File Number(s): 2024/00196929 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2024] NSWCATCD Date of Decision: 29 April 2024 Before: D Moujalli, Senior Member File Number(s): 2022/00416316 (formerly SC 22/38958) REASONS FOR DECISION Outline 1. On 6 November 2024 we allowed the appeal in this matter: The Owners- Strata Plan No. 100526 v Hamdan [2024] NSWCATAP 222. 2. In our reasons for decision at [51]-[54], we considered the issue of the costs of the appeal. We stated at [54]: It appears to us that the costs of this appeal are governed by s 60 and that there are no special circumstances warranting an order for costs of the appeal. However, as the parties' written submissions raised the question of costs, an opportunity should be provided for submissions to be made as to costs. Any such submissions should include an indication of whether it is accepted that the issue of costs should be determined on the papers, without a further hearing. 1. The appellant has made an application for the costs of the appeal. We have received the following written submissions in relation to costs: 1. appellants' submissions lodged on 20 November 2024, 2. respondents' submissions lodged on 9 December 2024, and 3. appellant's submissions in reply lodged on 17 December 2024. 1. The respondents opposed the application for costs. Both parties consented to the issue of costs being determined on the papers, without a further hearing. 2. Both parties accepted that the costs of the appeal are governed by section 60 of the Civil and Administrative Tribunal Act 2013( NSW) ( NCAT Act) and that it was necessary for the appellant to demonstrate that there were special circumstances warranting an award of costs. 3. In submitting that special circumstances existed, the appellant relied on section 60(3) ( c), (d),(e) and (g) of the NCAT Act. 4. The appellant's submissions in relation to section 60(3)(c) and ( e) of the NCAT Act can be considered together. In relation to section 60(3)(c), the appellant submitted that the respondent had no tenable basis in either law or fact to support the Tribunal's decision in its favour at first instance, having regard to what it said were "blatant omissions" in the Tribunal's decision. In relation to section 60(3)(e), for the same reasons the appellant submitted that the respondent's defence of the appeal was misconceived and lacking in substance. 5. These submissions by the appellant are ambitious in circumstances where the Tribunal gave a reasoned decision in favour of the respondents at first instance. It suffices to say that whilst we considered that the Tribunal made an error of law in the manner in which it conceived the exercise of the discretion under section 132 of the Strata Schemes Management Act 2015 (NSW), the respondent's carefully crafted support for the Tribunal's decision could not be said to be untenable, misconceived or lacking substance. 6. In relation to section 60(3)(d) of the NCAT Act, the appellant submitted that special circumstances existed due to the nature and complexity of the appeal. The appellant pointed to what it said was the voluminous documentary evidence in the proceedings demonstrated by the size of the Joint Court Book prepared for the appeal, extensive submissions and complex legal issues. 7. We do not consider that the issues raised by the appeal were of such complexity as to create special circumstances. Similarly, whilst the Joint Court Book contained a large number of documents, we do not consider that the documents were of such magnitude or complexity as to create special circumstances. 8. In relation to section 60(3)(g) of the NCAT Act, the appellant referred to an allegation made by the respondent in its Reply to the appeal and repeated in its written submissions on the appeal that an invalid strata committee meeting had taken place on 27 May 2024 and that as a result, for various reasons, the respondent should not have to contribute towards the appellant's costs of the appeal. The appellant pointed out that the issue raised by this allegation was abandoned by the respondent at the hearing of the appeal. The appellant submitted that the issue was unsubstantiated and baseless and was a relevant matter giving rise to special circumstances within the meaning of section 60 of the NCAT Act. 9. The issue concerning the alleged invalid strata committee meeting was not raised during the hearing of the appeal. It did not have to be addressed in our substantive reasons. It is not relied upon by the respondent now to oppose an order for costs. It was peripheral in any event. We do not consider that it gives rise to special circumstances within the meaning of section 60 of the NCAT Act. 10. The application for costs is dismissed. ********** 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: 22 January 2025