Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: EB 9 & 10 Pty Ltd v The Owners Strata Plan 934 [2018] NSWCA 288 Hearing dates: 6 November 2018 Date of orders: 28 November 2018 Decision date: 28 November 2018 Before: Meagher JA at [1]
Gleeson JA at [2]
Barrett AJA at [3]Decision: 1. Appeal dismissed.
2. The appellant pay the respondent’s costs of the appeal.Catchwords: LAND LAW – strata titles – proceedings by lot owner against owners corporation – lot owner obtains declaratory relief establishing a limited right apart from the strata titles legislation to use part of the common property – the successful plaintiff ordered to pay the costs of the unsuccessful defendant – whether that result compelled by strata titles legislation – whether the taking of the proceedings was not justified because the strata titles legislation made adequate provision for the enforcement of the plaintiff’s rights or remedies
PROCEDURE – costs – departure from the general rule that costs follow the event – provision of strata titles legislation requiring that successful plaintiff be ordered to pay costs of unsuccessful defendant – whether applicableLegislation Cited: Community Land Management Act 1989 (NSW)
Fines Act 1996 (NSW)
Strata Schemes (Freehold Development) Act 1973 (NSW)
Strata Schemes Management Act 1996 (NSW)
Strata Schemes Management Act 2015 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Australian Competition & Consumer Commission v The Shell Company of Australia Limited (1997) 72 FCR 386
Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493; [1980] HCA 53
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9
Boutros v Nationwide Capital Pty Ltd [2013] NSWCA 246
Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; [2014] HCA 36
Clark v Matton Developments Pty Ltd [2016] QSC 251
EB 9 & 10 Pty Ltd v The Owners Strata Plan 934 [2018] NSWSC 464
EB 9 & 10 Pty Ltd v The Owners Strata Plan 934 (No 2) [2018] NSWSC 546
Jackson v Slattery (1984) 1 NSWLR 599
King v Goussetis (1986) 5 NSWLR 89
McElwaine v The Owners Strata Plan 75975 [2017] NSWCA 239; (2017) 18 BPR 37,207
Minister for Local Government v Blue Mountains City Council [2018] NSWCA 133
Navarro v Spanish-Australian Club of Canberra ACT Inc (1987) 87 FLR 390
Phillips v Walsh (1990) 20 NSWLR 206
Port of London Authority v Cairn Line of Steamships Ltd [1913] 1 KB 497
Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd [2008] FCAFC 47; 246 ALR 113
Royal Insurance Co Ltd v Mylius (1926) 38 CLR 477; [1926] HCA 49
Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397; [1967] HCA 31
The Owners Strata Plan 37762 v Pham [2006] NSWSC 1287
The Owners Strata Plan 50276 v Thoo [2013] NSWCA 270; (2013) 17 BPR 33,789
The Owners Strata Plan 47027 v…
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Details
- Case
- [2018] NSWCA 288
- Decision Date
CaseChat Overview and Summary
EB 9 & 10 Pty Ltd (the appellant) sought to appeal a decision of the primary judge concerning the costs of proceedings it had brought against The Owners Strata Plan 934 (the respondent). The appellant, a lot owner within the strata plan, had obtained declaratory relief establishing a limited right to use a part of the common property, a right it asserted existed independently of the *Strata Schemes Management Act 2015* (NSW). Despite being the successful party in obtaining this declaration, the appellant was ordered by the primary judge to pay the respondent's costs. The appellant contended that this costs order was compelled by the legislation, which it argued made adequate provision for the enforcement of its rights, thereby rendering the taking of proceedings unjustified.
The central legal issues before the Court of Appeal were whether the primary judge's decision to order the appellant to pay the respondent's costs was mandated by the *Strata Schemes Management Act 2015* (NSW), and whether the appellant's proceedings were unjustified because the Act provided adequate enforcement mechanisms for the appellant's rights. The appellant argued that the Act's provisions regarding the enforcement of lot owner rights meant that the general rule of costs following the event should not apply, and that the primary judge was compelled to order the successful plaintiff to pay the unsuccessful defendant's costs.
The Court of Appeal dismissed the appeal, upholding the primary judge's costs order. The Court reasoned that the *Strata Schemes Management Act 2015* (NSW) did not compel a departure from the general rule that costs follow the event in this specific instance. While the Act contains provisions relating to costs in certain strata disputes, it did not create an obligation for a successful lot owner to pay the unsuccessful owners corporation's costs when the relief sought and obtained was not solely based on the enforcement of rights under the Act. The Court found that the appellant's claim for declaratory relief was not exclusively a statutory claim, and therefore the specific cost provisions of the Act were not determinative. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.
The central legal issues before the Court of Appeal were whether the primary judge's decision to order the appellant to pay the respondent's costs was mandated by the *Strata Schemes Management Act 2015* (NSW), and whether the appellant's proceedings were unjustified because the Act provided adequate enforcement mechanisms for the appellant's rights. The appellant argued that the Act's provisions regarding the enforcement of lot owner rights meant that the general rule of costs following the event should not apply, and that the primary judge was compelled to order the successful plaintiff to pay the unsuccessful defendant's costs.
The Court of Appeal dismissed the appeal, upholding the primary judge's costs order. The Court reasoned that the *Strata Schemes Management Act 2015* (NSW) did not compel a departure from the general rule that costs follow the event in this specific instance. While the Act contains provisions relating to costs in certain strata disputes, it did not create an obligation for a successful lot owner to pay the unsuccessful owners corporation's costs when the relief sought and obtained was not solely based on the enforcement of rights under the Act. The Court found that the appellant's claim for declaratory relief was not exclusively a statutory claim, and therefore the specific cost provisions of the Act were not determinative. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.
Orders
Orders of the court
1. Appeal dismissed.
2. The appellant pay the respondent’s costs of the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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