The Owners – Strata Plan No 70871 v Turek

By amended summons filed on 22 May 2020, the plaintiff, The Owners – Strata Plan No 70871 (the OC) seeks leave to appeal against a decision of the Appeal Panel of the Civil and Administrative Tribunal dismissing an appeal from the orders made by Senior Member Vrabac of the Consumer and Commercial Division of the Tribunal. Michael and Louise Turek, who are the owners of Lot 59 in Strata Plan No 70871, have been joined as defendants to the proceedings.

This Court’s jurisdiction arises under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act), which provides that a party to an external or internal appeal, may, with leave of the Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings. Pursuant to s 83(3), the Court may make “such orders as it considers appropriate on the appeal, including (but not limited to) an order affirming, varying or setting aside the decision of the Tribunal” or remitting the matter to the Tribunal.

It was common ground that the appeal in the present case from the Senior Member to the Appeal Panel was an internal appeal.

All references to legislation in these reasons are, unless otherwise stated, references to the Act.

Because of the importance of s 131 of the Strata Schemes Management Act 2015 (NSW) (the SSM Act) to this application, it is convenient to set it out at the outset, although the statutory framework will be set out in more detail below:

The defendants own unit 59 in Strata Plan 70871. The building is a mixed commercial/residential multi-level building in Chippendale. The defendants operate a mini-supermarket/convenience store from their unit, which is on the ground floor of the building. The defendants wanted to be allowed to store commercial waste in two bins in the bin area within the common property where the residential rubbish bins were stored.

On 24 April 2019, the defendants commenced proceedings SC19/19280 by filing an application in the Tribunal for an order pursuant to s 131 of the SSM Act that they be granted a licence to store the rubbish bins on common property. The matter was listed for hearing before Senior Member Burton on 27 August 2019.

On that day, the defendants applied for an adjournment of the proceedings as they were not ready for the hearing. Senior Member Burton adjourned the proceedings and made directions, including that the matter be listed on the first available date after 8 October 2019.

The parties received a listing notice specifying 1 November 2019 as the date for the hearing. On that day, Mr Notley appeared for the defendants and Mr Bannerman appeared for the OC before Senior Member Vrabac. Mr Notley did not initially apply for an adjournment of the proceedings. However, at a relatively early stage of the hearing, Mr Bannerman, solicitor, who appeared for the OC, directed the Tribunal’s attention to s 131 (set out above) and informed the Tribunal that the defendants had not submitted any proposed licence to the OC and that, accordingly, the Tribunal could not make the orders that were being sought by the defendants. He submitted that, in those circumstances, the Tribunal had no jurisdiction to make an order under s 131 and that the application ought be dismissed. He referred the Tribunal to the decision of Eadie v Harvey [2017] NSWCATAP 201 (Eadie) in which the Appeal Panel dismissed an appeal from a decision of the Tribunal dismissing an application by unit holders for a licence to park their cars permanently on common property on the ground that the appellants had never applied for such a licence from the OC and that, therefore, the Tribunal could not made an order under s 131. As a consequence of these submissions, Mr Notley applied for an adjournment.

In response to these submissions, Senior Member Vrabac said:

There was then a discussion about a timetable, after which this exchange occurred:

The following exchange also occurred:

Mr Bannerman sought the costs of that day.

On 1 November 2019 the Tribunal made the following orders:

The Tribunal noted, at the conclusion of the orders:

By letter dated 4 November 2019, the OC sought reasons for the orders. By letter dated 8 November 2019, the Tribunal wrote to the OC and said, in part:

Later that day, Mr Bannerman wrote to the Registrar of the Tribunal and said that, far from consenting to the orders, the OC had sought that the proceedings be dismissed. He reiterated his request for reasons. By letter dated 18 November 2019, the Tribunal wrote to Mr Bannerman to say that a recording of the hearing on 1 November 2019 had been ordered and that, once the recording had been listened to, the Tribunal would determine the “proper response”. By letter dated 29 November 2019, Senior Member Vrabac wrote:

The terms of this letter are consistent with what I consider to be the true position: that Mr Bannerman did not consent to any of the orders made by the Senior Member.

On 5 December 2019, written reasons dated 28 November 2019 were provided to the parties. Of present relevance, the Tribunal said:

The OC applied for a stay of order 3 (which required it to hold a meeting) which was heard on 10 December 2019 and refused by Principal Member Suthers. The Principal Member addressed the question of whether the OC had consented to order 3 and found that it had not, as appears from the following passage at [17] of the reasons:

On 21 November 2019, the defendants served on the OC a draft licence for the storage of two waste bins in the garbage room of the ground floor of the building, which formed part of the common property. On 17 January 2020 an EGM was held for the purposes of considering whether to grant a licence to the defendants. They attended the meeting and were asked questions about it. The minutes do not record that any relevant resolution was put to the meeting. The minutes recorded the “general business” as follows:

On 28 January 2020 the strata manager wrote to the defendants and asked questions about the licence. On 14 February 2020, the defendants’ solicitors wrote to the strata manager confirming the answers to questions (which it was alleged had been provided at the EGM). The letter concluded:

The uncontested evidence of Mrs Turek is that no response has been received to that letter.

On 28 November 2019 (before receiving the Tribunal’s reasons) the OC applied for leave to appeal to the Appeal Panel. This appeal was an “internal appeal” within the meaning of s 32(1) and (5). The application for leave referred to “attached submissions” instead of specifying any grounds of appeal.

The appeal was heard by the Appeal Panel (which was constituted by Principal Member Marks and Senior Member Gracie) on 6 February 2020. As before, Mr Bannerman appeared for the OC and Mr Notley appeared for the defendants. The Appeal Panel gave reasons on 28 February 2020 and refused leave to appeal, dismissed the appeal and granted liberty to apply with respect to costs.

In its reasons for decision at [17], the Appeal Panel set out the issue on appeal, which was accepted by the OC to be accurate:

The Appeal Panel found, at [19], that the decision was “interlocutory” because it concerned the granting of an application for adjournment (order 1) and “the making of orders in the nature of case management orders directed towards the preparation of the proceedings for hearing” (orders 2 and 3). It referred to the requirements for leave in cl 12(1) of Sch 4 (set out below). The Appeal Panel concluded, after setting out s 36 at [22]:

The Appeal Panel also said, at [24]:

The Appeal Panel addressed the construction of s 131 of the SSM Act and concluded at [28]:

The Appeal Panel also addressed the issue of whether the OC (through its solicitor, Mr Bannerman) had consented to orders 2 and 3 made by the Tribunal. The Appeal Panel noted that Mr Bannerman had “reluctantly” accepted, in the hearing before the Appeal Panel, that he had “acquiesced” in the making of these orders. The Appeal Panel concluded at [40]:

The Appeal Panel rejected the OC’s submission that the proceedings were lacking in substance or “otherwise misconceived”.

The Appeal Panel, when addressing the costs order made by the Tribunal, referred to the apparent inconsistency between [42] and [43] of the reasons of the Tribunal, which indicated that costs were to be reserved and the form of the order, which was that the costs be costs in the cause. The Appeal Panel purported to resolve the discrepancy at [46] when it said:

Notwithstanding the Appeal Panel’s interpretation of the order as meaning that costs were reserved, the Appeal Panel did not amend the order made by the Tribunal, which remained in its original form, namely that the costs of 1 November 2019 be “costs in the cause”.

Although it decided to refuse leave to appeal and made an order to that effect, the Appeal Panel, curiously, also dismissed the appeal. I understand the intent of the orders was to refuse leave. The Appeal Panel invited submissions on costs. Ultimately, on 19 May 2020, it ordered the OC to pay the defendants’ costs of the proceedings in the Appeal Panel. It found special circumstances which warranted an order for costs within the meaning of s 60 on two bases: that the notice of appeal had failed to specify grounds and that none of the grounds of appeal had been made out. The Appeal Panel said:

Section 28 provides that the Tribunal has four types of jurisdiction: general, administrative review, appeal (comprising internal and external appeal) and enforcement. The SSM Act does not provide that the Tribunal’s jurisdiction with respect to decisions of the owners corporation fall within its administrative review jurisdiction. Accordingly, the effect of s 9(1) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) is that the jurisdiction under s 131 of the SSM Act is not part of the Tribunal’s administrative review jurisdiction and therefore, the ADR Act does not apply. In these circumstances, Senior Member Vrabac was exercising general jurisdiction and the Appeal Panel was exercising appeal jurisdiction.

Section 29 provides for general jurisdiction and relevantly provides:

Section 36 provides:

Section 38 provides in part:

Section 39 provides for an inclusive definition of “application” as follows:

Section 51 provides that “[t]he Tribunal may adjourn proceedings to any time and place …”.

Section 55 provides that the Tribunal may dismiss any proceedings before it, including if it considers them to be “frivolous or vexatious or otherwise misconceived or lacking in substance”.

The Tribunal has a limited power to award costs. Section 60 relevantly provides:

Section 62 requires the Tribunal to give written notice of its decisions and to provide reasons on request.

Section 80(2) provides:

Schedule 4 makes provision for the Consumer and Commercial Division. Clause 3 of Sch 4 confers the Tribunal’s functions under the SSM Act on the Consumer and Commercial Division of the Tribunal.

Clause 12(1) of Sch 4 provides:

The SSM Act replaced the Strata Schemes Management Act 1996 (NSW) (the 1996 Act). Part 6 of the SSM Act, entitled “Property Management”, includes s 112, which empowers an owners corporation to grant a licence to an owner or occupier of a lot in the strata scheme to use common property in a particular manner or for particular purposes “if the owners corporation has approved the granting of the licence by a special resolution”: s 112(1).

Section 5 of the SSM Act makes provision for resolutions of owners corporations. Section 5(1) provides that:

Section 19 of the SSM Act empowers the secretary of an owners corporation to convene a general meeting of the owners corporation at any time. Further, s 20 of the SSM Act provides:

Part 6 confers several powers on an owners corporation. In respect of each power, there is a corresponding provision which entitles the person (whether the owners corporation or unit holder) to apply to the Tribunal for an order to do the thing which the original provision empowered the owners corporation to do. Division 6 of Part 6, “Orders about property” confers power on the Tribunal to do various things, including granting a licence over common property under s 112. Section 131 allows a lot owner whose application for a licence has not been approved by the owners corporation under s 112 to apply to the Tribunal for such an order.

Part 12, entitled “Disputes and Tribunal Powers” contains Division 4, “Orders that may be made by the Tribunal” which includes the sections extracted below:

Schedule 1 of the SSM Act, “Meeting procedures of owners corporation”, includes cl 4, which relevantly provides:

The OC alleged the following grounds of appeal:

Leave to appeal to this Court is required under s 83. The defendants did not dispute that the appeal raised a question of law but contended that leave ought not be granted since there was no matter of principle at stake which would warrant a grant of leave.

I am persuaded that leave ought be granted in respect of all grounds except 4 and 5, notwithstanding that the substantive decision of the Appeal Panel was merely to refuse leave to appeal. To describe the dispute as being one about two rubbish bins, while correct, does not encompass all that it is about. The application for leave to this Court raises questions: including, whether the Tribunal can adjourn proceedings on the ground that a precondition for the exercise of its power to make the order sought has not yet been fulfilled (grounds 1, 2 and 3) and also the approach to be taken where there is a disparity between the form of an order (including an order for costs) and the reasons given for the order. The application also raises questions about the conduct of practitioners when faced with an order which they have resisted and being required to assist a tribunal with formulating consequential orders.

It is plain from the text of s 131, and it was common ground, that the Tribunal may not order the grant of a licence unless the owners corporation has refused to grant a licence to use common property in a manner, for purposes, and on terms and conditions that would enable the current owner or occupier, or generally any owner or occupier, reasonably to use and enjoy that lot. Thus, had the Tribunal purported to grant a licence, notwithstanding that the owners corporation had not yet refused to grant a licence, the Tribunal would have been guilty of jurisdictional error because it would have mistaken the limits of its powers: Colbert v MacDonald [2016] NSWSC 1291 at [86] (N Adams J) and Craig v South Australia (1995) 184 CLR 163 at 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); [1995] HCA 58.

The issue between the parties is whether, if an application has been filed in the Tribunal before the owners corporation has refused any application to it, the Tribunal has power to hold the application in abeyance, by adjourning the proceedings or by not finally hearing them, until there has been a refusal by the owners corporation to grant the licence; or whether the proceedings must be dismissed because they are doomed to fail on the ground that the applicants had no right to the order sought at the time of filing the application. This issue is related to the question whether the Tribunal has jurisdiction in such a case.

In essence, the OC contended that, unless and until the OC had refused the defendants’ application for a licence, the proceedings were misconceived and that the only course available to the Tribunal was to strike them out. I understood the OC to submit that the Tribunal, accordingly, had no power to adjourn the proceedings pending consideration by the OC of a licence submitted by the defendants.

The language of the legislation does not support this construction. All it says is that the Tribunal is prohibited from making an order granting a licence unless it is satisfied that the OC has refused to grant a licence to the owner or occupier. The Act does not deprive the Tribunal of the jurisdiction to do anything; all it does, relevantly, is to prohibit the Tribunal from making the order sought in the application. While it would, in my view, be open to the Tribunal to dismiss proceedings under s 55 which have been commenced by application prior to any licence being put by the owner or occupier to the OC, on the grounds that they were potentially hypothetical, I am not persuaded that this was the only course open to the Tribunal. Mr Notley referred me to a number of authorities concerning findings of jurisdictional fact. I do not consider that the issue ought be resolved in terms of jurisdiction. The Tribunal had jurisdiction to entertain the claim but it did not have the power to make an order under s 131 of the SSM Act until the OC had refused to grant a licence.

Section 131 is to be contrasted with provisions which prohibit commencement of proceedings in a particular court. The issue that commonly arises is whether such provisions operate to deny jurisdiction or merely impact on the way in which it is to be exercised: 2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409 at [90]-[96] (Leeming JA). In such cases, the relevant principle, as articulated by M Leeming (writing extra-judicially) in Authority to Decide – the Law of Jurisdiction in Australia (2nd ed, 2020, Federation Press) at 41, is:

This principle was applied in Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32 which turned on the construction of s 151C of the Workers Compensation Act 1987 (NSW), which provided that a person was “not entitled to commence proceedings” until six months’ notice had been given to the employer. In that case, the Court (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) said:

There is no express prohibition in s 131 on the commencement of proceedings in the Tribunal before the OC has refused the application for a licence. I am not persuaded that there is any basis to imply one.

The Civil Procedure Act 2005 (NSW) does not apply to the Tribunal: s 4(1) and Sch 1 of the Civil Procedure Act. However, as set out above, the Act contains provisions which are similar to s 56 of the Civil Procedure Act, such as s 36. The Tribunal’s jurisdiction has been validly invoked by a consideration of what has been claimed, namely, an order under s 131. That the precondition for the making of the order had not been fulfilled at the time at which the application was filed does not deprive the Tribunal of jurisdiction to make an order adjourning the proceedings for the purpose of allowing events to take their course with a view to determining whether the precondition to an order will be fulfilled. As referred to above, it would have been open to the Tribunal to dismiss the defendants’ claim under s 55(1)(b) but this was a discretionary matter for the Tribunal, which also had the choice to adjourn the proceedings for a period for the relevant purpose. Parliament has expressly provided in s 36 that the Tribunal is to facilitate the “just, quick and cheap resolution of the real issues in the proceedings”. While, if the OC were to grant a licence, the proceedings might turn out to be otiose, it would seem to be inconsistent with the principles set out in s 36 for it to dismiss the proceedings, if the net result were simply to defer the filing of another application by the defendants once they had had their application for a licence refused by the OC.

This analysis is consistent with Eadie, which held, in accordance with the terms of s 131, that the Tribunal had no power to order a licence if the owners corporation had not first refused to grant it and that any such order was ultra vires.

I note for completeness that Mr Kerr SC, who appeared with Ms Apkarian for the OC in this Court, contended that, if an owner were permitted to commence proceedings in the Tribunal before applying to the OC for the relevant licence this would produce the following adverse consequences:

These arguments might have been appropriate in support of an application before the Tribunal to dismiss the proceedings pursuant to s 55, if there had been a basis for them. However, the OC maintained, in the Tribunal, the Appeal Panel and in this Court, that the Tribunal was required to dismiss them because the condition precedent to an order under s 131 had not been fulfilled at the time of filing the application. In these circumstances, it is neither necessary nor appropriate to address this submission in this Court which was, in effect, a submission that the present circumstance could give rise to an abuse of the processes of the Tribunal. I did not understand it to be suggested that the defendants had any ulterior motive for commencing proceedings when they did.

For the reasons given above, I am not satisfied that the Tribunal’s decision to adjourn the proceedings was legally erroneous.

The notice of appeal referred, in grounds 4 and 5, to orders 2 (which required the defendants to submit a draft licence) and 3 (which required the OC to convene an EGM and consider the draft licence). Although Mr Kerr challenged both orders, his submissions were principally directed to order 3.

The first question to be addressed in deciding the question of leave is whether the Appeal Panel was correct to find, as it did at [40] of its reasons, that the OC had consented to, or at least acquiesced in, orders 2 and 3. This was the basis for the Appeal Panel’s refusal of leave and conclusion that the ground had no merit.

The transcript of the hearing on 1 November 2019 makes plain that Mr Bannerman opposed the adjournment on the bases set out above. However, once it became apparent that the Tribunal proposed to grant the adjournment, Mr Bannerman accepted that the order would be made and did not seek to cavil with the Tribunal’s decision to make it. His response to the Tribunal was, in my view, appropriate and indeed required since the Tribunal had indicated that it would adjourn the matter. When the Tribunal proposed that it would order the OC to convene an EGM, Mr Bannerman sought to obtain instructions from the OC as to whether it would agree to do so. As soon as he informed the Tribunal of his desire to obtain instructions, the Tribunal cut him off and told him that it would order an EGM. It is plain from the extracts of transcript set out above, that the Tribunal did not countenance further debate on the topic. Thereafter, Mr Bannerman co-operated with the Tribunal about obtaining suitable dates and the orders were made. Mr Bannerman did not have an interest in order 2, because it was directed to the defendants and did not require the OC to do anything.

In my view, it is plain from the transcript that Mr Bannerman objected to order 3 but was not provided with an opportunity to obtain instructions as to whether the OC proposed to hold an EGM to consider a licence when it was proffered by the defendants. In providing assistance with dates, I regard him as doing no more than accepting the Tribunal’s decision to make the order and co-operating with the processes of the Tribunal, as he was obliged to do under s 36(3) of the Act. Thus, to the extent to which the Appeal Panel refused to consider the OC’s challenge to order 3 on the misapprehension that the OC had consented to it, the Appeal Panel was in error. Because of its erroneous conclusion, the Appeal Panel did not address the OC’s substantive submission that the Tribunal did not have power to make order 3. I consider the Appeal Panel’s discretion to refuse leave in respect of this ground to have miscarried. This gives rise to a question of law. However, it does not follow that leave ought be granted.

The question whether the Tribunal had power to order the OC to hold a meeting to consider a licence proposed by the defendants requires consideration of the Act and the SSM Act. Mr Notley contended that order 3 made by the Tribunal was authorised by ss 29, 36 or 38. Mr Kerr submitted that such orders were not appropriately characterised as case management orders and could not otherwise be justified by any of those provisions or by ss 231, 232 or 241 of the SSM Act, which are set out above. The Tribunal’s reasons did not identify the power pursuant to which order 3 was made. As referred to above, the Appeal Panel did not address the question of power.

Mr Kerr submitted that s 29 does not itself provide a source of power since its effect is to identify the sources of power available to the Tribunal to make orders when exercising its general jurisdiction, as it was in the present case. He also submitted that neither s 231, nor s 232, nor s 241 of the SSM Act (none of which was relied on by Mr Notley to support order 3) was available to authorise order 3. He contended that s 231 was not apposite as there were no urgent considerations which would warrant an interim order since the licence had not yet been formulated at the time of the order. He submitted that s 232(1) was a limited power which did not extend to the present circumstances since it could not be said that the order was made to “settle a complaint or dispute” about a “failure to exercise a function” because there was no relevant failure on the part of the OC, no licence having yet been put before it for consideration. Further, he relied on The Owners – Strata Plan No. 37762 v Pham [2006] NSWSC 1287 (which considered s 138(1)(a) of the 1996 Act, the statutory predecessor of s 232 of the SSM Act) and the statement by Rothman J at [63] that the words in s 138(1)(a) and (b) “confine the subject matter of the dispute and complaint and are words of limitation”. Mr Kerr also referred to Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 at [111] (Parker J) to the same effect.

Mr Kerr contended that the power in s 241 of the SSM Act to order a statutory injunction was not apt to support an interlocutory order since s 241 would appear to authorise only a final order after a hearing.

It is questionable whether the Tribunal had the power to make orders 2 and 3. The Tribunal did not identify any source of power for the order and the Appeal Panel did not address the substantive question of power at all. It was common ground that the OC did convene an EGM to consider the draft licence, within the time provided for by the order. The point is, thus, moot in the present case. In these circumstances, I am not persuaded that leave ought be granted in respect of either ground 4 or 5.

I note for completeness that, even if the Tribunal did not have the power to make orders 2 and 3, it was entitled to seek an indication from the defendants as to when they could provide a draft licence and an indication from the OC as to when it proposes to hold an EGM to consider the draft licence. Had such indications been given, the Tribunal could have noted them and stood the matter over until after the proposed EGM. This approach would have been consistent with the guiding principle for which s 36 provides.

Mr Kerr argued that once the Appeal Panel had accepted, as it did in [46] of its reasons, that the form of the order for costs did not correspond with the reasons given by the Tribunal, it was obliged to correct the order under the slip rule. He relied on Gikas v Papanayiotou [1977] 2 NSWLR 944 where the Court’s jurisdiction to correct an order where it did not correspond with the reasons given was addressed. Mr Notley did not submit that the Tribunal had intended other than to reserve the question of the costs of the hearing on 1 November 2019.

The Appeal Panel accepted that there was a disparity. However, it did not grant leave or correct the order. Despite the circumstance that the notice of appeal did not contain grounds, the challenge to the Tribunal’s costs order was made clear in the OC’s submissions that were attached to the notice of appeal.

It was submitted by Mr Notley, on the basis of Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [10] (Basten JA), that the appeal was against the decision of the Appeal Panel and not against the decision of the Tribunal. That must be accepted. Thus, unless error can be shown in the Appeal Panel’s refusal of leave, this Court cannot intervene. However, it does not follow that this Court is obliged to remit the matter to the Appeal Panel or to the Tribunal and cannot make the orders which the Appeal Panel could have made. Since an Appeal Panel on appeal can vary or set aside the orders of the tribunal, this Court can, under s 83(3), also make such orders, as long as leave has been granted and a question of law arises.

A disparity between the form of an order and the reasons for the order gives rise to a question of law. I am persuaded by Mr Kerr’s submission that the Appeal Panel’s discretion to refuse leave miscarried because it was based on the erroneous proposition that reasons could provide a sufficient gloss on an order to alter its terms. For these reasons, leave ought be granted in respect of grounds 6 and 7 to correct the error which the Appeal Panel accepted had been made but did not itself correct.

The OC has been unsuccessful in making out its principal challenge to the Appeal Panel’s decision, which was its refusal of leave to appeal against the orders, including the order that the proceedings be adjourned rather than dismissed.

However, the Appeal Panel’s finding of special circumstances within the meaning of s 60 was based on two matters which have successfully been impugned. First, the Appeal Panel was able, in its reasons for decision, to summarise concisely Mr Bannerman’s main point on the appeal. Thus, it can be taken to have understood the submissions made. The written submissions attached to the notice of appeal were, in my view, sufficiently clear for their purpose. Further, the Appeal Panel was acting on a basis, which I have found to be erroneous, that the OC, through Mr Bannerman, had consented to order 3. Both of these matters appear to have significantly influenced the Appeal Panel’s finding of special circumstances and caused its discretion to miscarry. In these circumstances, I am persuaded that the Appeal Panel’s order for costs ought be varied under s 83 and that no costs of the proceedings in the Appeal Panel ought be ordered. I am not persuaded that there were special circumstances.

The parties accepted that the general rule ought apply if one party were wholly successful. However, they otherwise sought that costs be reserved, in order that they could make submissions after having considered these reasons. Each party has had a modicum of success. Accordingly, it is appropriate to reserve the question of costs in order to provide the parties with an opportunity to make submissions.

For the reasons given above, I make the following orders: