Chua v The Owners Strata Plan No 89866

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Chua v The Owners Strata Plan No 89866 [2019] NSWCATCD 85

Hearing dates:

6 August 2019

Date of orders:

8 August 2019

Decision date:

08 August 2019

Jurisdiction:

Consumer and Commercial Division

Before:

S Thode, Senior Member

Decision:

1. A hearing on costs is dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013.

2. The applicant shall pay the respondent's costs of the hearing thrown away by reason of the late withdrawal, limited to three hours attendance and three hours preparation, as agreed or assessed. 

3. The application for costs is otherwise dismissed. 

Catchwords:

COSTS - Strata Schemes - withdrawal of application - special circumstances 

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Cases Cited:

Megerditchian v Kurmond Homes Pty L TD [2014] NSWCATAP 120

Re Minister for Immigration and Ethnic Affairs: Ex parte Lai Qin (1997) 186 CLR 622; [1997 ] HCA 6

Category:

Costs

Parties:

Siew Lee Chua (Applicant);
The Owners - Strata Plan No 89866 (Respondent)

Representation:

Siew Lee Chua (Applicant)
DEA Lawyers (Respondent)

File Number(s):

SC 19/29171

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. Proceedings SC 18/40601 were commenced on 18 September 2018. The applicant sought orders pursuant to s232 of the Strata Schemes Management Act 1996 for repair and maintenance of common property. The matter was listed for hearing on 15 April 2019. The Respondent was informed at the hearing that the application was “withdrawn” by the applicant. The applicant was ordered to pay the respondent’s costs of and incidental to the proceedings, such costs to be agreed or assessed.

2. The applicant appealed the costs orders.

3. On 4 June 2019 the Appeal Panel allowed the appeal and the costs order made on 15 April 2019 was set aside. The Appeal Panel ordered the parties to exchange submissions on the question of costs and remitted the matter for hearing on the question of costs only. The parties agreed that a hearing may be dispensed with and the matter comes before me today to be determined on the papers, without further need of parties to appear. I am satisfied that the application may be determined on the papers without further need of the parties to appear.

4. I have received written submissions from the respondent dated 19 June 2019.

5. I have received written submissions from the applicant dated 5 July 2019.

6. I have received submissions in reply from the respondent dated 12 July 2019.

Orders sought

7. The respondent seeks an order that the applicant pay the respondent’s costs of the proceedings.

The respondent’s submissions

8. The respondent submits that the Tribunal should find special circumstances pursuant to section 60 (3) of the act warranting an award of costs.

9. On 18 September 2018 the applicant filed a strata application in the Tribunal seeking orders under section 232 of the Strata schemes Management Act 2015 (the Act) relating to 3 matters:

1. a water leak into basement parking spaces;

2. a sticking front door;

3. issues concerning…