MacDermott v Wang

Case [2022] NSWCATCD 71

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: MacDermott v Wang [2022] NSWCATCD 71
Hearing dates: On the papers
Date of orders: 05 April 2022
Decision date: 05 April 2022
Jurisdiction:Consumer and Commercial Division
Before: D G Charles, Senior Member
Decision:

(1) In the proceeding constituted by File No. SC 20/04566 the respondents’ application for costs is dismissed and the parties are to bear their own costs of the proceeding.

(2) In the proceeding constituted by File No SC 21/37001 the applicant is to pay the respondents’ costs of and incidental to the hearing of the interim orders application on 6 September 2021 on the ordinary basis as agreed or as assessed in accordance with the applicable costs legislation; otherwise, each party is to bear their own costs of the proceeding.

Catchwords:

COSTS – Strata interim and substantive applications – Interim application dismissed - Withdrawal of substantive application – Whether there are special circumstances in each proceeding warranting a costs order – Exercise of discretion as to costs

Legislation Cited:

Strata Schemes Management Act 2015 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:

Wang v MacDermott [2021] NSWCATAP 75

Wang v MacDermott [2021] NSWCATAP 193

Calderbank v Calderbank (1975) 3 All ER 333

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

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

eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94

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

Rodny v Stricke [2020] NSWCATAP 20

Durran t/as Canberra Sheds and Outdoor Storage v Bliss [2018] NSWCATAP 43

Dehsabzi v The Owners-Strata Plan No 83556 [2019] NSWCATAP 65

The Owners – Strata Plan 70871 v Turek [2022] NSWCATAP 83 (28 March 2022)

Diaspora Holdings Pty Ltd v Owners SP 68608 [2019] NSWCATAP 250

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

Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [24]

Williams v Lewer [1974] 2 NSWLR 91

Wright v Foresight Constructions Pty Ltd [2011] NSWCA 327

Oshlack Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622

Mendonca v Tonna [2017] NSWCATAP 176

Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721

Multicon Engineering Pty Limited v Federal Airports Corporation (1996) 138 ALR 425

Hadid v Australis Media Ltd [1999] NSWSC 32

Rickard Constructions v Rickard Hails Moretti [2005] NSWSC 481

Jones v Bradley (No 2) [2003] NSWCA 258

Old v McInnes and Hodgkinson [2011] NSWCA 410

SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323

Miwa Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344

Texts Cited:

Nil

Category:Costs
Parties: Bruce MacDermott (Applicant)
Selina Wang (First Respondent)\
Oren Werker (Second Respondent)
Richard Ristwej (Third Respondent)
The Owners – Strata Plan No. 3470 (Other)
Representation:

Applicant (Self-represented)

Solicitors:
Strata Title Lawyers (Respondents)
File Number(s):

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Details
AGLC
MacDermott v Wang [2022] NSWCATCD 71
Case
[2022] NSWCATCD 71
Decision Date

CaseChat Overview and Summary

The applicants in this matter sought orders under the Strata Schemes Management Act 1996 (NSW) for interim and substantive relief. The applicants argued that the respondents had breached the Act by failing to pay levies. The respondents denied the allegations and counterclaimed for costs. The applicants subsequently withdrew their substantive application. The court was required to consider whether there were special circumstances in each proceeding warranting a costs order, and if so, what order should be made.

The court considered the conduct of the parties in each proceeding, and whether the applicants' applications were frivolous, vexatious, or an abuse of process. The court found that there were no special circumstances warranting a costs order in the interim proceeding, and dismissed the respondents' application for costs. In the substantive proceeding, the court found that the applicants' application was not frivolous, vexatious, or an abuse of process, but that the applicants had withdrawn their application after the respondents had incurred costs in defending the application. The court considered this conduct to be a special circumstance warranting a costs order, but limited the order to the costs of the hearing of the interim orders application.

The court exercised its discretion under the applicable costs legislation to order the applicants to pay the respondents' costs of and incidental to the hearing of the interim orders application on 6 September 2021 on the ordinary basis as agreed or as assessed in accordance with the applicable costs legislation. Otherwise, each party was to bear their own costs of the proceeding.

Orders

Orders of the court

(1) In the proceeding constituted by File No. SC 20/04566 the respondents’ application for costs is dismissed and the parties are to bear their own costs of the proceeding.

(2) In the proceeding constituted by File No SC 21/37001 the applicant is to pay the respondents’ costs of and incidental to the hearing of the interim orders application on 6 September 2021 on the ordinary basis as agreed or as assessed in accordance with the applicable costs legislation; otherwise, each party is to bear their own costs of the proceeding.

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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