Titus v Eddington (No 2) [2019] NSWCATAP 287

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Titus v Eddington (No 2) [2019] NSWCATAP 287 Hearing dates: On the papers Date of orders: 29 November 2019 Decision date: 29 November 2019 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President J McAteer, Senior Member Decision: (1) The application for an order for costs of the appeal to be paid by the appellants is dismissed. (2) The application concerning costs of the appeal is decided on the papers and a hearing is dispensed with. Catchwords: Costs on appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 Strata Schemes Management Act 2015 Cases Cited: Gaynor v Burns [2015] NSWCATAP 150 at [19] Texts Cited: Nil Category: Principal judgment Parties: Stephen Titus (Appellant) Joanne Titus (Appellant) Beverly Eddington (Respondent) Representation: Counsel: V F Kerr SC (Respondent)

Solicitors: Appellants (Self Represented) File Number(s): AP 19/27899 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 17 May 2019 Before: S Thode, Senior Member File Number(s): SC 18/23506

REASONS FOR DECISION 1. This decision concerns the respondent's application for an order that the costs of the appeal be paid by the appellants. The appellants' appeal has been dismissed: see Titus v Eddington [2019] NSWCATAP 247. The decision at first instance concerned the appellants' application for an order reallocating unit entitlements in a strata scheme. That application was unsuccessful and the appeal was also unsuccessful. We have dismissed the appeal but also made directions for the parties to make submissions as to whether we should make an order in favour of the respondent that her costs of the appeal be paid by the appellants. 2. We have also given the parties an opportunity to make submissions as to whether a hearing on the question of costs should be dispensed with. We have decided to dispense with a hearing on costs and this decision is made based on the written submissions of the parties. 3. The respondent relies upon s 60(3) of the Civil & Administrative Tribunal Act NSW 2013 (the Act) and submits that in this appeal there were special circumstances warranting an award of costs. The respondent's submissions may be summarised as follows: 1. For the Tribunal to make an order under s 60(2) of the Act, it is sufficient that circumstances are out of the ordinary. They do not have to be extraordinary or exceptional (see Gaynor v Burns [2015] NSWCATAP 150 at [19]). Special circumstances exist in this appeal. 2. There were several iterations of the Notice of Appeal causing the respondent to incur unnecessary costs in responding. The Notice of Appeal had 49 grounds of appeal, many with sub-grounds. A Reply was filed and then an Amended Notice of Appeal was filed. There was also a further amendment to the Amended Notice of Appeal to the effect that the appellant would seek leave to appeal if any of the grounds set out in the Amended Notice were not considered to be questions of law. 3. The appeal was lacking in substance and had no tenable basis (relying upon s 60(3)(c) and (e)). 4. The appellants were not able to establish in their appeal grounds any error of law, nor a ground involving the requirement for leave. Sections 60(3)(a), (c), (e) and (g) of the Act apply.