Selkirk v The Owners - Strata Plan No. 2661 - [2022] NSWSC 858

Supreme Court

New South Wales

Medium Neutral Citation: Selkirk v The Owners – Strata Plan No. 2661 [2022] NSWSC 858
Hearing dates: On the papers
Date of orders: 29 June 2022
Decision date: 29 June 2022
Jurisdiction: Equity
Before: Darke J
Decision:
Proceedings transferred to New South Wales Civil and Administrative Tribunal. No order as to costs.

Catchwords:
COSTS – dispute concerning a strata scheme – parties agree that proceedings should be transferred to NSW Civil and Administrative Tribunal – whether order for costs should be made against plaintiff – plaintiff not shown to have acted unreasonably – appropriate to make no order as to costs

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), sch 4 cl 6(2)
Fair Trading Act 1987 (NSW), s 30(4)
Strata Schemes Management Act 2015 (NSW), s 232

Category: Costs
Parties: Simone Selkirk (Plaintiff)
The Owners – Strata Plan No. 2661 (First Defendant)
Alexandra Stournas (Second Defendant)
Representation:
Counsel:
Mr H Black (First Defendant)
Solicitors:
Sachs Gerace Lawyers (Plaintiff)
Vardanega Roberts (First Defendant)

File Number(s): 2021/196829
Publication restriction: None

Judgment

These proceedings were commenced by Statement of Claim filed on 9 July 2021. The plaintiff is the owner of a lot in a strata scheme that comprises a block of units in Darling Point. The first defendant is the Owners Corporation of the scheme. The second defendant is the owner of another lot in the scheme. She has not entered an appearance.
The plaintiff claims relief in respect of three complaints, as follows:

a claim in respect of damage to a bathroom caused by leaking water;

a claim that certain strata levies may not be recovered from the plaintiff; and

a claim in respect of excessive noise said to emanate from the second defendant’s lot.

No Defences have yet been filed. Indeed, little has occurred in the proceedings other than that the parties have engaged in debate as to the appropriate forum for the determination of the matter, and have made some efforts towards a settlement of the matter, including by participation in a Court-annexed mediation in December 2021.
The matter has not been resolved, but the parties at least agree that it would be appropriate for the matter to be transferred to the New South Wales Civil and Administrative Tribunal (“NCAT”). An order to that effect is sought by the plaintiff in a Notice of Motion that was filed on 6 May 2022.
The parties consent to the making of such an order, and it seems appropriate in the circumstances to do so. However, the parties have requested the Court to first determine a question of costs. The question is whether an order should be made that the plaintiff pay the first defendant’s costs thrown away by the commencement of these proceedings. The first defendant seeks such an order, together with an order that such costs be payable forthwith. The plaintiff resists the making of such orders, and seeks an order that the first defendant pay her costs of the Notice of Motion.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWSC 858
Decision Date: 29 June 2022

CaseChat Overview and Summary

The dispute in this case was between Selkirk and the owners of Strata Plan No. 2661. The parties agreed that the proceedings should be transferred to the NSW Civil and Administrative Tribunal. The issue before the court was whether an order for costs should be made against the plaintiff, Selkirk, given that the proceedings were to be transferred. The court held that the plaintiff had not been shown to have acted unreasonably in pursuing the matter and that it was appropriate to make no order as to costs.

The court considered the circumstances leading to the transfer of the proceedings. It was established that the parties had agreed to the transfer, and there were no indications of any misconduct or unreasonable behaviour on the part of Selkirk. The court emphasised the importance of not penalising parties for agreeing to a transfer when it was in the best interest of the resolution of the dispute. As the plaintiff had not acted unreasonably, the court deemed it appropriate to make no order as to costs.

In reaching this decision, the court highlighted the need for a balanced approach when considering costs in cases involving disputes concerning strata schemes. The court recognised that the transfer of proceedings to the appropriate tribunal was in the interest of justice and that there were no grounds to impose costs on the plaintiff. The court's decision underscores the importance of ensuring that parties are not unfairly penalised for agreeing to a transfer of proceedings when it serves the best interests of resolving the dispute.

No specific orders as to costs were made against the plaintiff in this case. The court's decision was based on the lack of unreasonable behaviour by the plaintiff and the mutual agreement of the parties to transfer the proceedings to the NSW Civil and Administrative Tribunal.

Orders