Margaret Baker-Crooks v Stephen and Allison Burnett [2014] NSWCATCD 136

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Margaret Baker-Crooks v Stephen and Allison Burnett [2014] NSWCATCD 136 Hearing dates: 25 March 2014 Decision date: 23 July 2014 Before: G Meadows, Senior Member Decision: 1.The appeal is dismissed with no order as to costs Catchwords: Strata appeal; costs; withdrawal Legislation Cited: Civil and Administrative Tribunal Act 2013; Consumer Trader and Tenancy Tribunal Act 2001; Strata Schemes Administration Act 1996; Cases Cited: Sorose Pty Ltd (In Liq) v The Owners-Strata Plan 80638 (SCS 12/22798 Category: Principal judgment Parties: Margaret Baker-Crooks (applicant) Stephen Walker and Allison Burnett Walker (respondents) Representation: On the papers File Number(s): SCS 13/52438 Publication restriction: Nil

reasons for decision

Application 1On 8 May 2013, the appellant filed an application for an Adjudicator's order in the then Consumer, Trader and Tenancy Tribunal ("CTTT"). The orders requested were: "That the respondents: (1) Comply with by-laws 1 and 14; (2) Comply with section 117 of the Strata Schemes Management Act 1996 ("the Act"); 3) Remove the timber floor and reinstate the common property to its original condition by the installation of carpet and underlay throughout the lot and the installation of appropriate flooring that prevents the transmission of noise in the kitchen and laundry; 4) Make good any damage to the common property caused by the flooring works; and 5) In the alternative, lay underlay and carpet over the timber floors and install sufficient insulation or acoustic treatment in the kitchen and laundry." 2On 6 September 2013 Adjudicator Rosser dismissed the application, providing extensive reasons. 3On 30 September 2013, the appellant filed this appeal, setting out the following Grounds of Appeal: "The Applicant appeals the decision of Strata Schemes Adjudicator Kim Rosser dated 6 September 2013 in CTTT Application No. SCS13/26419 ("Initial Application") on the following grounds: (a)The Adjudicator erred in failing to grant the Initial Application by failing to consider that the Applicant had grounds to seek an order to remove the timber floors pursuant to section 138 of the Strata Schemes Management Act 1996 due to the timber floors being unauthorised by the owners corporation. (b)The Adjudicator erred in failing to grant the Initial Application by not finding that there was a breach of by-laws 1 and 14 and section 117 of the Strata Schemes Management Act 1996 on the available evidence. (c)The Adjudicator erred in failing to grant the Initial Application by placing too much weight on the findings of the Tonin Report dated 15 July 2013 when the author of the Tonin Report failed to inspect the Applicant's Lot and could not verify the conclusions it drew nor support such conclusions with adequate reasoning. (d)The Adjudicator erred in failing to grant the Initial Application by concluding that the Respondent's lot was unoccupied on a significant number of occasions as the majority of the evidence provided by the Respondent in support of such a conclusion was generic receipts which provided little corrobative [sic] value and should be given no probative value. (e)The Adjudicator erred in failing to grant the Initial Application by placing too much weight on the evidence of the owner of lot 3 as the sound log indicates peaks in noise at times when Mr Sainsbury is likely to be at work. (f)The Adjudicator erred in finding that kitchen, bathroom and laundry floors did not have to comply with by-laws 1 and 14 and section 117 of the Strata Schemes Management Act 1996. (g)Such other grounds as the Tribunal considers appropriate." 4The Appeal Application sought the following orders: "[That the respondents] comply with By-law 1 to prevent the interference with the peaceful enjoyment of the owner or occupier of another lot; (i)Comply with By law 14 to prevent the transmission from the floor space of noise likely to disturb the peaceful enjoyment of the owner of another lot; (ii) Comply with section 117 of the Act to not interfere unreasonably with the use or enjoyment of any other lot; (iii) Remove the unauthorised timber floorings and reinstate the common property to its original condition by the installation of underlay and carpet throughout the lot and appropriate flooring that prevents the transmission of noise in the kitchen and laundry, or at the minimum, the removal of the timber flooring and installation of carpet and underlay in the cross-hatched areas in the diagram as filed in the Initial Application marked annexure "A" and installation of sufficient insulation or acoustic treatment in the kitchen and laundry as illustrated as the hatched areas in the diagram filed in the Initial Application marked annexure "A"; (iv) Make good any damage to the common property in relation to the Works as described in paragraph 1(iv) above; (v) In the alternative, the Respondent lay underlay and carpet over the timber floors in their lot in the cross-hatched areas in the diagram marked annexure "A" and installation of sufficient insulation or acoustic treatment in the areas marked as the kitchen and laundry as illustrated as the hatched areas in the diagram marked annexure "A"; and (vii) Any other orders that the Adjudicator deems fit." 5The appeal was subject to the usual case management procedures within the Tribunal (including orders for the service of evidence by both parties) and was listed for hearing before me on 06 February 2014. Before that date, by letter dated 24 January 2013 [sic: 2014], the appellant's solicitors advised the Tribunal Registry that "my client withdraws her application pursuant to section 28(5)(h) of the Consumer Trader and Tenancy Tribunal Act 2001." 6Further correspondence between the parties and the Registry made it clear that there would be a dispute in relation to the withdrawal application and in relation to a possible application for costs. On 06 February 2014 I made orders vacating the hearing on that day and for the parties to file and serve submissions in relation to the withdrawal of the application by the applicant [appellant], the dismissal of the proceedings and the respondents' costs. The decision was ordered, by consent, to be on the papers. This is that decision. 7I noted on 06 February 2014 that the issues of withdrawal of an appeal (or any other application to the Tribunal pursuant to the Act) and the question of an award of legal costs were the subject of some continuing controversy within the former Consumer Trader and Tenancy Tribunal ("CTTT") and its successor, the Civil and Administrative Tribunal ("NCAT"). I therefore suggested that the parties' written submissions would be helpful in those circumstances. 8Both parties have provided lengthy and detailed submissions and have grappled directly with the issues just noted, not just in the written submissions themselves but also obviously in their research and consideration which preceded the writing of the submissions. I have read the submissions most carefully and, if I may so put it respectfully, with enjoyment. 9However, since the orders were made for the parties to file and serve their submissions, I have published my decision in the matter of Sorose Pty Ltd (In Liq) v The Owners-Strata Plan 80638 (SCS 12/22798 - I am not aware if that decision is available through Austlii or NSW Caselaw). In that matter I considered the issues under consideration in this matter, and particularly the effect of an applicant/appellant advising of the withdrawal of an application/appeal, what the appropriate response of the Tribunal should be in that instance and whether costs orders may be made. In short, I have come to the following conclusions: (1)when an applicant/appellant advises the Tribunal of their withdrawal of an application or proceedings, that application does not instantly "disappear" but the Tribunal must make an order giving effect to the request of the applicant/appellant; (2)the only action the Tribunal can take is in compliance with s185 of the Act, that is, to dismiss the application; (3)the Tribunal has the power to relist the matter either at the time the dismissal order is made or later, for argument on costs; (4)any order in relation to costs is strictly governed by s 192 of the Act; and (5)in regard to a s 185 dismissal of an appeal and a s 192 costs order there is no relevant distinction between "application" and "proceedings" as used in the Act. 10It is therefore with great respect that I do not analyse and discuss the submissions in this matter but only because in my opinion this is no longer a matter of controversy. 11It is still necessary to consider the submissions in relation to whether it is appropriate to make a costs order pursuant to s 192 of the Act. It is agreed between the parties that that section limits the consideration to whether: (1)the application of appeal is frivolous, vexatious, misconceived or lacking in substance, or (2)a decision in favour of the applicant or appellant is not within the jurisdiction of the Tribunal.