The Owners - Strata Plan No. 70030 v Decon Australia Pty Ltd (No 2)

[2014] NSWSC 595

Supreme Court

New South Wales

Medium Neutral Citation:

The Owners - Strata Plan No. 70030 v Decon Australia Pty Ltd (No 2) [2014] NSWSC 595

Hearing dates:

In chambers

Decision date:

16 May 2014

Jurisdiction:

Common Law

Before:

Schmidt J

Decision:

1. The defendants to pay the plaintiff's costs of the proceedings as agreed or assessed.

2. For the purpose of this costs order, the 2nd to 5th defendants are to be treated as one defendant.

3. The defendants be granted a certificate under the Suitors' Fund Act in relation to the costs of the proceedings if otherwise qualified.

Catchwords:

COSTS - whether costs should depart from the general rule costs as agreed or assessed - defendants treated as one defendant - Suitors' Fund Act 1951 - certificate granted

Legislation Cited:

Home Building Act 1989 (NSW)
Suitors' Fund Act 1951 (NSW)
Uniform Civil Procedure Rules 2005

Cases Cited:

Burringbar Real Estate Centre Pty Limited v Anthony John Ryder & Ors [2008] NSWSC 891
Latoudis v Casey [1990] HCA 59; 170 CLR 534
Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72
The Owners - Strata Plan No. 70030 v Decon Australia Pty Ltd [2014] NSWSC 347

Category:

Costs

Parties:

The Owners - Strata Plan No. 70030 (Plaintiff)
Decon Australia Pty Ltd ACN 078 021 333 (First Defendant)
Eissa Soliman Tadros (Second Defendant)
Afaf Aziz (Third Defendant)
Shawki Hanna Gad (Fourth Defendant)
Lily Aziz Gad (Fifth Defendant)

Representation:

Counsel:
Mr I George (Plaintiff)
Mr T Davie (Second to Fifth Defendants)
Solicitors:
Spinks Elphick Ho (Plaintiff)
Uther Webster & Evans (First Defendant)
Peter Merity Solicitor Pty Ltd (Second to Fifth Defendants)

File Number(s):

2013/84320

Publication restriction:

None

Judgment

1. Judgment was given in this matter on 28 March 2014, quashing orders made by the Consumer, Trader and Tenancy Tribunal of New South Wales and remitting the proceedings to the New South Wales Civil and Administrative Tribunal (see The Owners - Strata Plan No. 70030 v Decon Australia Pty Ltd [2014] NSWSC 347).

1. The defendants sought a departure from the usual order as to costs under the Uniform Civil Procedure Rules 2005, namely that they follow the event (see Rule 42 and Latoudis v Casey [1990] HCA 59; 170 CLR 534 at 556 - 7 and Oshlack v Richmond River Council [1998] HCA 11;193 CLR 72 at 97).

1. Three alternative bases were advanced for such a departure, which requires particular justification on the part of the party seeking the departure, such as misconduct in the proceedings of the kind discussed in Oshlack at [67] - [69]. The orders sought were opposed, other than that sought under the Suitor's Fund Act 1951 (NSW).

1. The first basis advanced was that the costs of the proceedings should be costs in the proceedings before the Tribunal, for four reasons: that the decision quashed had not been initiated by the defendants, but by the Tribunal; that it was the Tribunal which had departed from the basis on which the hearing had commenced, namely for the hearing of both applications before either was decided, and instead the proceedings were dismissed without hearing or determining the plaintiff's application; that the plaintiff's conduct of the proceedings merited their dismissal; and that it was feasible that the plaintiff's transfer application would be declined or not pursued.

1. I am satisfied that justice could not permit the order sought to be made, given the conclusions reached in the March judgment.

1. While in a case where a new trial is ordered, costs of the first trial will usually follow the event of the new trial, it is another thing entirely to require that costs of a successful application such as this, follow costs of the new proceedings which will result from the application.

1. Further, while the application on which the defendants succeeded before the Tribunal had originally been initiated by the Tribunal, it was pursued by them by motion. I concluded at [80] that the procedural history of the matter was that the plaintiff had persistently failed, without adequate explanation, to provide information directed by the Tribunal. I also concluded at [88] that it appeared that the Tribunal Member considered that:

"the procedural problems revolved around failures on the part of legal representatives, rather than the plaintiff, which is a statutory corporation of home owners. Representative error, as well as error on the part of the first expert who advised the plaintiff, were matters on which it was entitled to rely to resist the dismissal of the proceedings and their transfer to this Court".

1. In the result I concluded that both parties had cogent arguments to advance and that their competing applications had to be determined on their merits (at [90]). Those circumstances do not warrant any departure from the usual costs order in these proceedings. Further, there has been no misconduct on the plaintiff's part in these proceedings which might warrant any departure from the usual rule.

1. Alternatively the defendants submitted that costs of the proceedings should be costs in the plaintiff's application to have the proceedings transferred to this Court.

1. I am also satisfied that justice could not permit a costs order on that basis.

1. While there was procedural delinquency in the Tribunal proceedings on the plaintiff's part, there was no disentitling conduct on its part in these proceedings. Accordingly, under the Rules it is entitled to a costs order in its favour, reflective of its success in having the Tribunal's decision dismissing its application under the Home Building Act 1951 (NSW) quashed and the defendants' failure in their resistance of that order, absent relevant misconduct of which there has been none.

1. No just basis upon which the costs of these proceedings could be linked to the plaintiff's pursuit of the transfer application, or by which the defendants can be sheltered from the consequences of their unsuccessful resistance of these proceedings, has been established.

1. Finally the defendants sought a certificate under s 6 of the Suitors' Fund Act. It provides:

"6 Costs of certain appeals

(1) If an appeal against the decision of a court:

(a) to the Supreme Court on a question of law or fact, or

(b) to the High Court from a decision of the Supreme Court on a question of law,

succeeds, the Supreme Court may, on application, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal."

1. "Court" is defined in s 2 to mean "such tribunals or other bodies as are prescribed" and "appeal is defined to include "any motion for a new trial and any proceeding in the nature of an appeal". Proceedings such as this brought from the Consumer, Trader and Tenancy Tribunal have been held to fall within these definitions (see Burringbar Real Estate Centre Pty Limited v Anthony John Ryder & Ors [2008] NSWSC 891, also a case involving denial of procedural fairness).

1. Section 6(7) of the Suitors' Fund Act provides:

"(7) An indemnity certificate shall not be granted in favour of:

(a) the Crown,

(b) a corporation that has a paid-up share capital of two hundred thousand dollars or more, or

(c) a corporation that does not have such a paid-up share capital but that, within the meaning of section 50 of the Corporations Act 2001 of the Commonwealth, is related to a body corporate that has such a paid-up share capital, unless the appeal to which the certificate relates was instituted before the commencement of the Legal Assistance and Suitors' Fund (Amendment) Act 1970"

1. No evidence was initially led as to whether s 6(7)(b) or (c) applied to the first defendant. On 13 May information provided by the first defendant established that it does not fall within those provisions.

1. In the circumstances, given the course which the proceedings took before the Tribunal, for which none of the parties are in reality responsible and given the conclusions reached in the March judgment, I am satisfied that the defendants should have a certificate under this Act.

1. The 2nd to 5th defendants also submitted that they should be treated as one defendant for the purpose of costs, being in the same interest and having always been represented together. The other parties made no submissions against that approach.

Orders

1. For the reasons given I order that:

1. The defendants to pay the plaintiff's costs of the proceedings as agreed or assessed.

2. For the purpose of this costs order, the 2nd to 5th defendants are to be treated as one defendant.

3. The defendants be granted a certificate under the Suitors' Fund Act in relation to the costs of the proceedings if otherwise qualified.

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Decision last updated: 16 May 2014