Blair v The Owners-Strata Plan No 71656 and Mitchell [2016] NSWCATCD 8

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Blair v The Owners-Strata Plan No 71656 and Mitchell [2016] NSWCATCD 8 Hearing dates: Costs on the papers Decision date: 20 January 2016 Jurisdiction: Consumer and Commercial Division Before: Geoffrey Meadows, Senior Member Decision: 1. The appellant is to pay the legal costs of the first respondent on the ordinary basis as agreed or assessed pursuant to the Legal Profession Act 2004 or if that is not the appropriate legislation, pursuant to the Legal Profession Uniform Law Application Act 2014, specifically Part 4.3 Division 7 of the Legal Profession Uniform Law (NSW) No. 16a. Catchwords: STRATA AND COMMUNITY SCHEMES—costs—Consumer and Commercial Division—applicable legislation—costs not awarded Legislation Cited: Civil & Administrative Tribunal Act 2013 Legal Profession Act 2004 Legal Profession Uniform Law Application Act 2014 No 16 Legal Profession Uniform Law (NSW) No. 16a Cases Cited: Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479; (1990) 64 ALJR 458 Gaynor v Burns [2015] NSWCATAP 150 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Category: Costs Parties: Tracey Blair (applicant); Owners Corporation Strata Plan 71656 and Anne and William Mitchell (respondents) Representation: J. S. Mueller & Co (Applicant) Pobi Lawyers (Respondent) File Number(s): SCS 14/50879 Publication restriction: Nil

reasons for decision

The Claim 1. On 23 September 2014 Adjudicator Corley dismissed an adjudication application brought by the appellant. On 5 May 2015, I dismissed this appeal against Adjudicator Corley's decision. The reasons for that determination are set out in the brief reasons published on that date. Essentially, the appellant had been unable to demonstrate an Adjudicator had power to remove a properly appointed strata manager prior to the expiry of the agreement appointing that manager. Other issues were also discussed on that day as summarised in my published reasons. Those reasons should be read in conjunction with this decision and reasons. 2. Following the decision on 5 May 2015, the respondent applied for an award of its legal costs, supported by written submissions sent on 21 May 2015 but not stamped "received" until 25 May 2015. I note that 21 May 2015 was a Thursday and if the submissions were not delivered the following day, the next working day was Monday 25 May 2015. I note the letter sending the submissions was dated 21 May 2015. Although the submissions are therefore late, and there is no explanation as to why they were not physically received until 25 May 2015, I am satisfied there is no prejudice to the applicant in accepting and reading the respondent's submissions, given the period of time that has passed. 3. On 9 June 2015, the appellant sent an email to the Registry, noting that a copy of the respondent's submissions were provided to her on 1 June 2015 and that, as they were therefore out of time, and that "I trust there is nothing further required by me". There does not appear to have been any reply from the Registry to that email. No further correspondence was received from the appellant prior to 4 December 2015. On that date (and it is not clear from the Tribunal file what precipitated the correspondence) the Tribunal wrote to the appellant advising that I had determined to accept the respondent's costs submissions dated 21 May 2015 and inviting any submissions in reply to be provided no later than 18 December 2015. 4. There then followed a flurry of correspondence starting with a request by the appellant for an extension of time, opposed by the respondent. I do not propose to summarise this correspondence, except to note that the request for an extension of time was withdrawn, and the appellant provided submissions on 18 December 2015. I accept and read those submissions.