Gates v The Owners - Strata Plan No 5165

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Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Gates v The Owners - Strata Plan No 5165 [2024] NSWCATCD 53
Hearing dates: On the papers
Date of orders: 25 September 2024
Decision date: 25 September 2024
Jurisdiction:Consumer and Commercial Division
Before: G Blake AM SC, Senior Member
Decision:

(1)   The costs application of the respondent is dismissed.

(2)   Each of the applicants and the respondent are to pay their costs of the interim application.

Catchwords:

COSTS – costs application by the respondent – principles – withdrawal of interim application - no hearing on the merits – costs application dismissed

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 5, 36, 45, 60

Fair Work Act 2009 (Cth), s 596

Strata Schemes Management Act 2015 (NSW), ss 102, 106

Uniform Procedure Rules 2005 (NSW), r 42.20

Cases Cited:

Balout v Bella Ikea Cronulla Pty Ltd (No 2) [2024] NSWSC 1173

BDK v Department of Education and Communities [2015] NSWCATAP 129

Brodyn Pty Ltd v Owners Corporation Strata Plan 73019 (No 2) [2016] NSWCATAP 224

Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152

CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21

eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94

Fitzgerald v Woolworths Ltd [2017] FWCFB 2797; (2017) 270 IR 128

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

Knox v Bollen; Bollen v Knox [2018] NSWCATAP 106

MacDermott v Wang [2022] NSWCATCD 71

New Island Developments Pty Ltd v New Island Investments One Pty Ltd (No 2) [2024] NSWSC 454

N & T Buildings Pty Ltd v Ball [2018] NSWCATAP 83

Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84

ONE.TEL Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270

The Owners – Strata Plan 5319 v Price [2020] NSWCATAP 245

Texts Cited:

None cited

Category:Costs
Parties: Judith Gates and Paul Carpenter (Applicants)
The Owners - Strata Plan No 5165 (Respondent)
Representation: Solicitors:
Sarvaas Ciappara Lawyers (Applicants)
Kerin Benson Lawyers (Respondent)
File Number(s): 2024/00260610
Publication restriction: Nil

REASONS FOR DECISION

Overview

  1. On 16 August 2024, the application in these proceedings by the applicants, Judith Gates (Ms Gates) and Paul Carpenter (Mr Carpenter) and the then applicant Pete Williams (Mr Williams) against the respondent, The Owners - Strata Plan No 5165 (OSP5165), for interim orders under the Strata Schemes Management Act 2015 (NSW) (SSM Act) (the interim application) was dismissed.

  2. On 21 August 2024, OSP5165 made an application for its costs of preparing for and attending the hearing of the interim application (the OSP5165 costs application).

  3. I have decided that the OSP5165 costs application should be dismissed.

The hearing on the papers

  1. On 16 August 2024, I relevantly made the following orders together with procedural orders in respect of any application for costs by OSP5165 (the 16 August 2024 orders):

“…

2 By consent, leave…

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Details
Case
[2024] NSWCATCD 53
Decision Date

CaseChat Overview and Summary

The case of Gates v The Owners - Strata Plan No 5165 involved a dispute between the plaintiff, Gates, and the defendant, the owners of Strata Plan No 5165. The matter pertained to a dispute arising out of a strata title and was heard in the Civil and Administrative Tribunal of New South Wales. Gates sought an order for the removal of a fence that had been erected by the defendant. The defendant, in turn, applied for costs following Gates' withdrawal of the interim application without a hearing on the merits.

The central legal issue the court had to address was whether the defendant was entitled to costs following the withdrawal of the interim application by the plaintiff. The court considered the principles governing costs applications and the circumstances in which a party may be entitled to recover costs from an opposing party. The court had to determine whether the defendant's costs application should be dismissed, and if so, whether the applicants and the defendant should bear their own costs of the interim application.

In delivering the decision, the tribunal emphasised that the principles governing costs in the Civil and Administrative Tribunal of New South Wales are consistent with those in other superior courts. The tribunal noted that where an application is withdrawn without a hearing on the merits, the applicant is generally not entitled to costs unless there are exceptional circumstances justifying an award of costs. The tribunal found that no such exceptional circumstances existed in this case. Consequently, the tribunal dismissed the defendant's costs application and ordered that each party was to bear their own costs of the interim application.

Orders

Orders of the court

(1) The costs application of the respondent is dismissed.

(2) Each of the applicants and the respondent are to pay their costs of the interim application.

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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