Webster v Owners Units Plan No 3967 (Unit Titles)
[2016] ACAT 58
•7 June 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
WEBSTER v OWNERS UNITS PLAN NO 3967 (Unit Titles) [2016] ACAT 58
XD 1170/2015
Catchwords: UNIT TITLES – costs – whether the respondent caused unreasonable delay
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 48
Tribunal: Senior Member J Lennard
Date of Orders: 7 June 2016
Date of Reasons for Decision: 7 June 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1170/2015
BETWEEN:
BEDE WEBSTER
Applicant
AND:
THE OWNERS UNITS PLAN 3967
Respondent
TRIBUNAL: Senior Member J Lennard
DATE: 7 June 2016
ORDER
The Tribunal Orders that:
The respondent shall pay to the applicant the sum of $740.00 on or before 20 June 2016.
………………………………..
Senior Member J Lennard
REASONS FOR DECISION
The application was filed on 13 October 2015. The applicant claimed compensation for damage to his motor vehicle caused by the negligence of the respondent.
The respondent filed a written response to the claim on 6 November 2015.
A preliminary conference was held on 1 December 2015. Both parties attended the conference and directions were made. The matter was listed for hearing on Monday 18 January 2016. The directions order was served on each party. The evidence shows that the respondent received a copy of that order on 9 December 2015.
When the matter came on for hearing on 18 January 2016 the respondent failed to attend. The matter was heard ex parte, and orders were made awarding an amount of damages to the applicant.
On 29 January 2016, the respondent made an application requesting the “Tribunal reschedule the hearing held on Monday 18 January 2016, so that we as the respondent may attend to represent our interests in this matter.” This application was dealt with as an application to set aside the orders made on 18 January 2016.
The respondents stated in their application to set aside:
The conference orders made on 1 December 2015 were received in our office on 9 December 2015. Due to the high number of emails received during the holiday period, I did not become aware of this notice until Tuesday 19 January 2016 (having only just returned from annual leave, sifting through some 570+ emails received over that time). I was obviously concerned to learn that the hearing may have already taken place.
During the conference held on 1 December 2015 the member present requested we confirm our leave arrangements at the hearing may be scheduled accordingly. I indicated that late January early February would be suitable as I would be absent from most of December and January. The presiding member took down handwritten notes that would confirm the above.
I expected to receive notification of the hearing following my return from leave so I could make the appropriate arrangements to attend.
I also note that the notification received from the tribunal contains deadlines that fall after the supposed hearing date. …Clearly an error has occurred in defining the date of the hearing, which led to my absence.
The contemporaneous notes made by the member who conducted the conference indicate that the respondent would be available from 15 January 2016 onwards. There clearly was an administrative error which resulted in the directions requiring documents to be filed by the respondent after the date of the hearing. This mistake, however, could not have been the cause of the absence of the respondent since the respondent’s submissions indicate that the respondent failed to read the notice of hearing and directions orders, received by his office on 9 December 2015, until Tuesday 19 January 2016. The hearing was conducted on a day that the respondent had indicated was one on which he would be available.
On 16 February 2016 the orders made on 18 January 2016 were set aside and the matter was set down to hearing on 9 March 2016. An order was made awarding the applicant an amount of $682.64 compensation.
At the hearing of the application to set aside the orders made on 18 January 2016, the registrar made contemporaneous notes which indicated that the applicant had sought costs after being granted leave to make an application for costs. The applicant made an oral application for costs at the conclusion of the hearing on 9 March 2016. The decision on costs was reserved.
An award of costs does not automatically follow the outcome in ACAT. There must be factors evident in the matter, or in the manner in which the matter was conducted, which would justify the Tribunal moving from the presumption that each party bears their own costs. ACAT has a very narrow power to award costs. Section 48(1) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT act) provides that the parties to an application must bear their own costs unless this Act otherwise provides or the Tribunal otherwise orders. Section 48(2)(b) of the ACAT Act is the relevant provision to be considered in this application for costs. If the Tribunal considers that a party to an application caused unreasonable delay or obstruction before or while the Tribunal was dealing with the application, the Tribunal may order the party to pay the reasonable cost of the other party arising from the delay or obstruction.
The conclusion of this matter was delayed from 18 January 2016 to 9 March 2016 as a result of the respondent’s failure to attend at the hearing on 18 January 2016. The respondent’s failure to attend that hearing was as a direct result of the respondent’s failure to read orders received in its office in early December 2015. The respondent attended the preliminary conference. At that preliminary conference the respondent was represented a senior strata manager from their appointed strata manager Civium Strata People. The respondent knew from that conference that they were required to provide written submissions, documents and evidence prior to a hearing. While I accept that there was no intention on the part of the respondent to delay the hearing of the matter, the fact is that the resolution of the matter was delayed as a direct result of the respondent's conduct.
The applicant has prepared for and attended two hearings which have been made necessary by the respondent’s failure to read the notice of hearing and directions orders. The first was the ex parte hearing conducted on 18 January 2016, and the second was the hearing of the application to set aside. The respondent’s conduct has resulted in unreasonable delay of the resolution of the matter. The applicant has claimed six hours costs for preparation and attendance at the two hearings. I am satisfied that the respondent should pay those costs. I have calculated costs of $740.00, based upon the applicant’s representations relating to the Magistrates Courts Rules.
ORDER
The respondent shall pay to the applicant the sum of $740.00 on or before 20 June 2016.
………………………………..
Senior Member J Lennard
HEARING DETAILS
FILE NUMBER: | XD 1170/2015 |
PARTIES, APPLICANT: | Bede Webster |
PARTIES, RESPONDENT: | Owners Units Plan 3967 |
TRIBUNAL MEMBERS: | Senior Member J Lennard |
DATES OF HEARING: | 9 March 2016 |
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