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. Respondents' Submissions on Costs 12The respondents' main submission in relation to that issue, under the heading "Issue 3 - is the Appellant's appeal 'frivolous, vexatious, misconceived or lacking in substance'?" is related almost entirely to the assertion (supported, I should note, by extensive analysis of the evidence provided and the course of the proceedings) that what was described as the appellant's "main evidence" being the "sound log" [paragraph 69 of the respondents' submissions] was false and deliberately fabricated. The allegation relates primarily to one entry in regard to which, I am satisfied, the respondents would have been able to demonstrate that neither the applicant nor the applicant's daughter could have made an entry in the sound log. There is also the additional submission that some 88 entries in the noise log related to occasions when in fact there was no-one present in the respondent's unit at the time. The appellant replies that the single entry was simply an inadvertent error. The respondent says that the inaccurate and falsified sound log and the persistence of the appellant continuing to rely on it when confronted with objective evidence, is vexatious. 13The respondent also submits that in seeking orders not within the jurisdiction of the Tribunal, the appeal is misconceived. This submission relates to the orders sought in relation to common property in the absence of the Owners Corporation as a party. The submission is rather oddly expressed as follows: "[t]he Tribunal has the power in section 192(b) of the SSM Act to make an order for payment of costs in circumstances where a decision in favour of the Appellant is not entirely within the jurisdiction of the Tribunal." [Emphasis added] The respondents do not, however, provide any further analysis in relation to the word "entirely", merely suggesting that the fact that the orders in relation to part of the appeal or one of the grounds for the appeal are not within the jurisdiction of the Tribunal means it is open to the Tribunal to make an order for costs pursuant to s 192(b) of the Act. 14The respondents submit that there are four reasons that a costs order should be made: (1)the appellant relied on 6 "generic" grounds of appeal, being a "rehash" of the issues raised during the adjudication process; (2)the appellant chose not to put "any" evidence before the Tribunal especially acoustic evidence; (3)the appellant chose to withdraw the application without explanation shortly before the hearing and following service of evidence showing the appellant had fabricated evidence; and (4)the respondents have incurred significant legal costs. The respondents go on to submit that an order for costs on an indemnity basis should be made, referring to a number of precedents in relation to the appropriate principles to be applied in that regard. The main submission is again related to the allegation of fabrication of evidence. Appellant's Submissions on Costs 15In summary, in relation to the "vexatious" argument, the applicant denies the allegation of fabrication and asserts that there is other evidence in relation to the respondents not being present which the appellant would have tested at the hearing. 16In relation to the jurisdictional argument and the application/appeal being misconceived, the appellant submits that the appellant does have rights in relation to common property pursuant to s 138 of the Act and that such rights permit an action against another lot owner. In any case, the appellant argues, the appeal certainly included other valid grounds. 17The appellant also submits that there is a long-standing and genuine dispute between the parties and the application/appeal do not come within the terms of s 192 of the Act. 18The appellant provides some detail in regard to her reasons for withdrawing the appeal. I do not summarise that further at this point as in my opinion those reasons are not relevant to the decision to be made by me. Consideration and Decision 19In my opinion, the appeal was not frivolous as there was clearly a genuine dispute between the parties. The appeal was not out of the Tribunal's jurisdiction. I reject the respondents' submission in relation to the common property and I accept the appellant's submissions in that regard. There was a possible argument on the effect of the legislation and in any case, there is no requirement that the grounds of appeal must be "entirely" within jurisdiction. I do not accept on the material before me (and without conducting a quasi-hearing) that the appeal was misconceived. 20Although it is certainly possible to jump to a conclusion that evidence was fabricated and that is why the appellant chose to withdraw, it is also possible that the appellant did make a genuine mistake. Where such an argument is made, it may be crucially important to view the witnesses under cross-examination. I do not accept for that reason that the appeal was vexatious. 21In relation to the argument that the appellant did not present evidence to the Tribunal, I do not understand that to be the case. An appeal will usually consist of the evidence provided to the adjudicator and may include, but does not require, additional evidence. 22It is no doubt frustrating to a party to an appeal when the appeal is withdrawn at the last moment. However, for the reasons given above, I make no order as to costs. Geoffrey Meadows Senior Member Civil and Administrative Tribunal of NSW 23 July 2014 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: 11 September 2014