Valero Holdings Pty Limited v The Owners - Strata Plan No 33531 [2014] NSWCATCD 34

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Valero Holdings Pty Limited v The Owners - Strata Plan No 33531 [2014] NSWCATCD 34 Decision date: 26 March 2014 Jurisdiction: Consumer and Commercial Division Before: K Rosser, Senior Member Decision: Costs 1. The applicant shall pay the respondent's costs of the proceedings on a party party basis as agreed or assessed. Catchwords: Costs; Unheard proceedings Legislation Cited: Civil and Administrative Tribunal Act (NSW) 2013 Strata Schemes Management Act (NSW) 1996 Cases Cited: Owners Corporation of Strata Plan No 4521 v Zouk [2007] NSWCA 23 Category: Costs Parties: Valero Holdings (applicant) The Owners – Strata Plan No 33531 Representation: Makinson d'Apice Lawyers (applicant) Grace Lawyers (respondent) File Number(s): SCS 13/30043

reasons for decision

Background 1.The respondent seeks costs in relation to the substantive application which was heard and determined on 12 February 2014. That application was determined on the same day as the hearing. The parties were notified of the orders the Tribunal made on 12 February 2013 by a notice of order dated 17 February 2014. Reasons for decision, which were originally dated 12 February 2014, were attached to the notice of order. While the Registry changed the date on the reasons for decision from 12 February 2014 to 17 February 2014 prior to dispatching the notice and attached reasons, the notice of order confirms the date on which the orders were made. 2.At the hearing of the substantive application, the parties agreed that if the issue of costs could not be settled, it could be determined without a hearing. The respondent was directed to file and serve a submission on costs by 26 February 2014. A submission was filed on that day. The applicant was directed to file and serve a submission on costs by 12 March 2014. No submission on costs has been received from the applicant. 3.I note from the file that on 13 February 2014 the applicant's solicitor wrote to the Registrar seeking orders granting leave to the applicant to file written submissions in relation to a substantive issue in the proceedings. On 18 February 2014 the applicant's solicitor again wrote to the Registrar, on this occasion advising that she had been instructed to withdraw the proceedings. The orders sought on that occasion included an order that the applicant pay the respondent's costs of the proceedings as agreed or assessed. 4.Both of these letters were received after the orders had been made on 12 February 2014 and neither was brought to my attention until after the decision was published on 17 February 2014. I note that the applicant's solicitor again wrote to the Registrar on 7 March 2014 and that a response to that letter was dispatched on 14 March 2014.