EB 9 & 10 Pty Ltd v The Owners Strata Plan 934

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.