Kencevski v The Owners - Strata Plan No. 488 (No.2)

The appeal concerns a dispute between the applicant, Kencevski, and the respondent, The Owners - Strata Plan No. 488. The case was heard in the Civil and Administrative Tribunal of New South Wales. The primary issue was whether there were special circumstances justifying an order for costs under section 60(2) of the Civil and Administrative Tribunal Act. The dispute arose from an application for a Special By-law under the Strata Schemes Management Act 1996, which the tribunal rejected. The applicant sought costs for the proceedings, but the tribunal found no special circumstances warranting such an order. Instead, it directed the parties to negotiate the costs, which they failed to do, leading to the applicant's application for costs.

The central legal issue was whether the tribunal had the authority to order costs in the proceedings or if it could only order costs necessary for the approval of a Special By-law. The applicant argued that the tribunal had the power to order costs in the proceedings if there were special circumstances, citing the authority of the Civil and Administrative Tribunal Act. The respondent contended that the tribunal's power was limited to ordering costs necessary for the approval of a Special By-law and that no such special circumstances existed. The court had to determine whether the tribunal's interpretation of its powers was correct and whether the tribunal's decision not to order costs was just.

The court found that the tribunal had correctly interpreted its powers under the Act. It noted that the tribunal's authority to order costs was limited to those necessary for the approval of a Special By-law, not for the proceedings as a whole. The court also found that the tribunal's decision not to order costs was not unjust, as the applicant had failed to demonstrate special circumstances. The court held that the tribunal had not erred in its decision and dismissed the appeal. The costs of the appeal were ordered to be paid by the respondent within 28 days of the date of the agreement or assessment.