Supreme Court New South Wales Medium Neutral Citation: The Owners - Strata Plan No. 13631 v McGrath & Anor (No 1) [2016] NSWSC 1929 Hearing dates: 21 October 2016 Decision date: 21 October 2016 Jurisdiction: Common Law - Administrative Law Before: N Adams J Decision: (1) Order 2 made by the second defendant on 10 December 2015 as amended on 20 January 2016 is quashed. (2) The summons is otherwise dismissed. (3) The sum of $30,238.25 is to be paid to the plaintiff by the first defendant within 28 days. Catchwords: ADMINISTRATIVE LAW – judicial review of decision of NCAT member – where parties agreed that relief sought should be granted – where relief discretionary and Court must be satisfied that it is appropriate to make the orders sought Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 60(1) Strata Schemes Management Act 1996 (NSW), ss 202(1), 204 Supreme Court Act 1970 (NSW), s 69 Cases Cited: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Category: Principal judgment Parties: The Owners - Strata Plan No. 13631 (Plaintiff) Peter Anthony John McGrath (Defendant) Representation: Counsel: Mr D Knoll (Plaintiff) Ms B Tronson (Defendant) Solicitors: J S Mueller & Co Lawyers (Plaintiff) Sachs Gerace Lawyers (Defendant) File Number(s): 2016/00073133 EX TEMPORE Judgment 1. By summons filed on 8 March 2016, the plaintiff seeks judicial review of the decision of the New South Wales Civil and Administrative Tribunal ("the Tribunal") on 10 December 2015 as amended on 20 January 2016. 2. The plaintiff seeks an order in the nature of certiorari quashing the decision of the Tribunal and an order remitting the matter to the Tribunal to be determined according to law. The plaintiff invokes this Court's supervisory jurisdiction, regulated by s 69 of the Supreme Court Act 1970 (NSW). 3. The plaintiff is the Owners Corporation of Strata Plan No. 13631 and the defendant is one of the lot owners in that strata plan. 4. The plaintiff brought proceedings against the defendant before the Tribunal for breach of an order made by a Strata Schemes Adjudicator under Chapter 5 of the Strata Schemes Management Act 1996 (NSW). Section 202(1) of that Act provides as follows: "The Tribunal may, by order, require a person to pay a pecuniary penalty of an amount of up to 50 penalty units for contravention of an order under this Chapter." 1. Section 202 is in Chapter 5 of the Strata Schemes Management Act, which gives power to Adjudicators and to the Tribunal to make orders to settle disputes about certain matters relating to the operation and management of a strata scheme. 2. The proceedings were based on allegations that the defendant had breached orders made by an Adjudicator on 26 June 2014. 3. The hearing proceeded before a senior member of the Tribunal on 17 August 2015 and 9 November 2015 and a decision was made on 10 December 2015. Two orders were made. The application was dismissed (Order 1) and the plaintiff was ordered to pay the defendant's costs "of and incidental to the proceedings in the fixed amount of $30,086.25" (Order 2). 4. The matter was listed for hearing today. On Tuesday 18 October 2016, the legal representatives of the parties contacted my Associate to advise that the proceedings had been "settled". Two documents titled "Consent Judgment" were subsequently sent to my Associate by way of e-mail. Although the parties seek to have the matter resolved, there was no agreement between the parties as to who would pay the costs of the proceedings settled in this Court. What was agreed between the parties was that the decision in relation to Order 2, being the NCAT costs order, be quashed and that the summons be otherwise dismissed. 5. This Court is being asked to exercise its supervisory jurisdiction over the Tribunal. Accordingly, I can only make an order quashing an order of the Tribunal if I am satisfied that either jurisdictional error or error on the face of the record has been established. 6. I have read the decision of the Tribunal. The member stated at [74] of his reasons that the power to award costs is to be found in s 204 of the Strata Schemes Management Act and then went on to state the following: "75 On the basis that the application [sic] has failed in its application, it is a proper order in the exercise of the Tribunal [sic] to order that the applicant pay the respondent's costs of and incidental to the proceedings. 76 The Tribunal ordered, before the hearing conducted on 9 November 2015, that the parties provide their costs incurred in the proceedings pursuant to r 33 of the Civil and Administrative Tribunal Rules 2014. 77 On 9 November 2015, being the day of the hearing, the solicitors for the respondent filed their certificate in this respect disclosing the respondent's costs were $30,086.25 [sic]. 78 On that basis, it is a proper exercise of the discretion of the Tribunal in ordering costs that the applicant be ordered to pay the respondent's costs of the proceedings in the amount of $30,086.25 [sic]." 1. I am satisfied that error is disclosed such that it is appropriate to quash the costs order made by the Tribunal. 2. There is no power to award costs under s 204 of the Strata Schemes Management Act in the circumstances that were before the Tribunal member. 3. Section 204(1) provides as follows: "The Tribunal may also make an order for the payment of costs when making an order requiring the payment of a pecuniary penalty under this Part." 1. The power to award costs in s 204 is thus pre-conditioned on there having already been an order made requiring the payment of a pecuniary penalty. No such order was made by the Tribunal. 2. The Strata Schemes Management Act confers a power upon the member on conditions. The failure to exercise the decision-making power in accordance with the terms on which jurisdiction was conferred amounts to jurisdictional error, having regard to the language of the statute: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [196]. 3. Although there was no power for the Tribunal to award costs under s 204 of the Strata Schemes Management Act, there is a limited general power for the Tribunal to award costs. Section 60(1) of the Civil and Administrative Tribunal Act 2013 (NSW) provides that each party to proceedings in the Tribunal is to pay its own costs. However, s 60(2) of that Act provides that, "The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs". 4. In the proceedings before me today it was submitted by Mr Knoll, who appears for the plaintiff, that general principles of statutory construction require that the general provision in s 60 of the Civil and Administrative Tribunal Act be read subject to the specific provisions in s 204 of the Strata Schemes Management Act. 5. I have some doubt as to whether there is any power at all for the Tribunal to have awarded costs in the circumstances, given the nature of the proceedings before it. However, it is not necessary for me to make a final determination as to whether the general power in s 60(2) of the Civil and Administrative Tribunal Act must be read subject to the specific power such that no power exists. In any event, it was certainly not the case that the Tribunal member turned his mind to whether or not special circumstances existed in any event. 6. Following the costs order made by the Tribunal, the first defendant garnisheed the amount of $30,238.25 from the plaintiff. 7. Ms Tronson, who appears on behalf of the first defendant, accepts that, given the quashing of Order 2, it will be necessary for the first defendant to repay to the plaintiff the sum of $30,238.25. Although Ms Tronson did not have instructions from the first defendant to provide an undertaking to do so, she made no submissions against the submission made by Mr Knoll that the Court should make such an order. ORDERS 1. For these reasons I am satisfied that error has been disclosed in relation to Order 2 and I propose to make the following orders: 1. Order 2 made by the second defendant on 10 December 2015 as amended on 20 January 2016 is quashed. 2. The summons is otherwise dismissed. 3. The sum of $30,238.25 is to be paid to the plaintiff by the first defendant within 28 days. ********** 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: 01 March 2017