The Owners – Strata Plan 21702 v Krimbogiannis (No 2)

THE COURT: On 5 December 2014 the Court handed down judgment on an application for judicial review of a decision of the District Court on appeal from the Consumer, Trader and Tenancy Tribunal: The Owners – Strata Plan 21702 v Krimbogiannis [2014] NSWCA 411. The applicant in the proceedings was the owners’ corporation for a building subject to a strata scheme. The first three respondents were (or had been at the time the dispute arose) tenants of premises in the building. The fourth respondent (the proceedings being by way of judicial review and not appeal) was the District Court. The fifth respondent, Fallshaw (Investments) Pty Ltd, was the owner of the unit of which the first-third respondents were tenants. The fifth respondent filed a submitting appearance and took no part in the hearing of the review application in this Court. It appeared but submitted to the making of “all orders sought, and the giving or entry of judgment in respect of all claims made, save as to costs.”

In disposing of the review proceedings, the Court made orders as to costs between the applicant and the first-third respondents. Nobody sought any order against the fifth respondent, nor did it seek an order against any other party.

On 19 December 2014 the fifth respondent filed a notice of motion seeking an order that the applicant pay its costs. The motion was made returnable at 9am on 2 February 2015. The purpose of the listing was to give directions as to the future conduct of the matter. The fifth respondent appeared by counsel. The Court noted that it was now seeking to reopen a matter in which it had taken no part, in order to obtain an order for costs which it did not seek at an appropriate time. The applicant appeared by its solicitor at the directions hearing but took no part in the discussion. At the conclusion of the hearing the Court gave the following direction and recorded a note:

On 9 February 2015 counsel for the fifth respondent advised that it did not seek to pursue its motion.

On 20 February 2015, the solicitor for the applicant sent an email to the Court seeking an order that the fifth respondent pay its costs of the motion. Given that the solicitor attended at the hearing on 2 February, but made no application at that time, despite the express indication that the matter might be dealt with on the papers without the applicant being invited to respond, there is some irony in the current application. The express purpose of the directions given on 2 February was to avoid the applicant incurring costs unless and until the Court determined there was a real issue to be addressed. It can only be said that an unwarranted application for costs has been met by a further unwarranted application. Both solicitors and counsel should be mindful of their obligations under s 56 of the Civil Procedure Act 2005 (NSW). Use of the words “we are instructed to seek an order” does not exonerate a legal representative from his or her obligations under s 56.

The Court makes the following orders: