Piazza v Strata Corporation 10147 Inc (No 2) - [2020] SASCFC 62

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
PIAZZA & ANOR v STRATA CORPORATION 10147 INC & ANOR (No 2)
[2020] SASCFC 62
Judgment of The Full Court
(The Honourable Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Bampton)
29 June 2020
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - DECLARATIONS
Applications by the appellants and respondents seeking orders as to costs and consequential orders.
On 24 April 2020, the Full Court delivered its judgment on an appeal against the decision of a Judge of the District Court. The primary issue on appeal was whether or not an Optus monopole based on ground within the unit held by the second respondent extended into airspace which was the common property of the first respondent, and whether, if that were the case, the first respondent had authorised its erection. The Full Court made seven declarations. The questions of the costs of the proceedings and the proper consequential orders that should be made to give effect to the declarations were adjourned.
The appellants seek orders for costs against the respondents and an order that the second respondent pay 90 per cent of the rent it receives under its lease agreements with Optus. The respondents seek an order referring the questions of rent sharing and costs of the District Court action to mediation before a Judge of this Court. If unsuccessful, the second respondent seeks a remittal to the District Court.
Held per curiam:
1. There is no reason to depart from the ordinary order as to costs as between the appellants and the second respondent. The second respondent is to pay the appellants’ costs of the appeal and the trial.
2. Making a costs order against the first respondent is problematic, because it is difficult to fashion an order which would not require the second appellant to make a contribution, as a member of the Strata Corporation, towards its own costs, thus reducing the costs that the second appellant is otherwise entitled to. The question of costs as against the first respondent is reserved until the outcome of the mediation.
3. The matter is referred to mediation before a Master of this Court.
Strata Titles Act 1988 (SA), referred to.
Piazza v Strata Corporation 10147 Inc [2020] SASCFC 27; Piazza v Strata Corporation 10147 Inc [2019] SADC 38, considered.

PIAZZA & ANOR v STRATA CORPORATION 10147 INC & ANOR (No 2)
[2020] SASCFC 62
Full Court: Kourakis CJ, Stanley and Bampton JJ

THE COURT: On 24 April 2020, the Full Court delivered its judgment[1] in this matter on an appeal against the decision of a Judge of the District Court in a claim made under the Strata Titles Act 1988 (SA) (the Strata Titles Act). The primary issue on the appeal was whether or not an Optus monopole based on ground within the unit held by the second respondent, JJADD Pty Ltd (JJADD), extended into airspace which was the common property of the first respondent (the Strata Corporation), and whether, if that were the case, the Strata Corporation had authorised its erection.
[1] Piazza v Strata Corporation 10147 Inc [2020] SASCFC 27.
The Full Court gave the following answers to the issues agreed by the parties to arise on the appeal:[2]
[2] Piazza v Strata Corporation 10147 Inc [2020] SASCFC 27 at [9].
1Yes – the space from three metres above the ground level of the unit subsidiaries was common property.
2JJADD exclusively occupied the space taken by the monopole in a way which was inconsistent with the shared use of common property by all unit holders.
3No – the Strata Corporation has not granted JJADD an exclusive right to occupy the space taken by the monopole.
4No – Piazza is not estopped from contending that JJADD was not properly authorised.
5No – JJADD has no other statutory right to exclusively occupy the space taken by the monopole.
6Yes – a declaration should be made in accordance with the above answers.
7Yes – a declaration should be made that JJADD has trespassed against the common property of the Strata Corporation and has breached Article 2(b) of the Strata Corporation. A declaration should be made that the Strata Corporation has failed to discharge its duty imposed under s 25(a) of the Strata Titles Act by not taking steps to remove the monopole or secure a proportion of the rent paid by Optus for the benefit of all unit holders.
…
After judgment was delivered, the questions of the costs of the proceedings and the proper consequential orders that should be made to give effect to the declarations were adjourned, in the hope that the parties might make mutually agreed arrangements with respect to the monopole and the rents received by JJADD from Optus. Unfortunately, they have not.
The appellants, Mr Piazza and the company of which he is a principal, JG & A Piazza Nominees Pty Ltd, to which we will collectively refer as Piazza, now seek orders for costs against the respondents and an order that the second respondent, JJADD, pay 90 per cent of the rent it receives under its lease agreements with Optus. The respondents, on the other hand, seek an order referring the questions of rent sharing and costs of the District Court action to mediation before a Judge of this Court. If unsuccessful, the second respondent seeks a remittal to the District Court.
It is necessary to start by stating clearly the implications of the judgment of the Court for the Strata Corporation. Following the judgment of this Court, the primary dispute which remains, apart from costs, is one between JJADD and the Strata Corporation. The Strata Corporation is bound to act in accordance with the declarations and, therefore, to take steps to recover a proper proportion of the rent received by JJADD. The written submissions it has provided, on the consequential orders this Court should make, do not reveal what steps, if any, it has taken in that regard.
Mr Piazza substantially succeeded on the appeal, resulting in the making of orders which vindicate the legal position he took on the primary questions before the Judge. JJADD, in its submissions, contends that there are outstanding issues which have not been determined on the counterclaim it brought against the Strata Corporation. The Judge appears to have dealt with the counterclaim in [67]-[73] of his Honour’s judgment.[3] No appeal was brought by JJADD. Moreover, this Court’s declaration that Piazza was not estopped from contending that JJADD was not authorised to construct the monopole also now stands in the way of any claim JJADD may have against the Strata Corporation. Be that as it may, if there is any aspect of the District Court action which has not been finally determined, JJADD’s remedy is to bring an application in that action.
[3] Piazza v Strata Corporation 10147 Inc [2019] SADC 38 at [67]-[73].
There is no reason to depart from the ordinary order as to costs as between Piazza and JJADD. JJADD resisted the findings sought by Piazza in order to protect its financial interest, but has lost. Having succeeded in establishing the proprietary interest of the Strata Corporation, it is immaterial that Piazza has not obtained all of the specific relief it sought in its claim. Accordingly, we order that JJADD pay Piazza’s costs of the appeal and the trial.
The Strata Corporation chose, contrary to the interests of its members, to support the position taken by JJADD. In the ordinary course, it would be expected to bear some responsibility for Piazza’s costs. However, making a costs order against the Strata Corporation is problematic, because it is difficult to fashion an order which would not require JG & A Piazza Nominees Pty Ltd to make a contribution, as a member of the Strata Corporation, towards its own costs, thus reducing the costs that JG & A Piazza Nominees Pty Ltd is otherwise entitled to. Even if this Court were to order that no payment received by the Strata Corporation from JG & A Piazza Nominees Pty Ltd is to be used to pay its costs, the funds available to the Strata Corporation for other common purposes may be depleted. Moreover, Piazza has foreshadowed an application for an order for costs against the Strata Corporation’s solicitors, for opposing Piazza’s application inconsistently with, what Piazza claims were, their instructions. For these reasons, we reserve the question of costs as against the Strata Corporation until the outcome of the mediation is known.
The Court is concerned that the parties not be put to further costs, recovery of which may be complex, by referral of the matter to a private mediator. Accordingly, arrangements have been made for a Master of this Court to conduct a mediation on 23 July 2020. The issues on the mediation will be:
·the amount which JJADD should pay to the Strata Corporation by way of compensation for its unauthorised use of the common property from 17 February 2017 until such time as the use of that property is authorised;
·the procedure by, and the terms and conditions on, which the erection of the Optus monopole on the common property will be authorised; and
·the appropriate arrangements which should be put in place so that in the event that this Court makes a costs order against the Strata Corporation, Piazza is not required to make any contribution towards those costs.
If agreement on those issues is not reached, this Court will proceed to determine:
·the proportion of the rent which should be paid for the past unauthorised use of the common property;
·orders which should be made to regularise the future occupation of the common property by the Optus monopole; and
·the costs orders which should be made against the Strata Corporation or its solicitors.
The parties have agreed certain minor amendments to the declarations made by the Court and recorded in the Record of Outcome of 24 April 2020. Those declarations will be amended to reflect the declarations in the Minutes of Order submitted by the Strata Corporation subject only to correcting a typographical error.