Roberto v SP60346 (Tin Shed): costs
Roberto v The Owners – Strata Plan No 60346 t/as Tin Shed [2026] NSWCATAP 280
In short
The Appeal Panel refused an owners corporation’s application for costs following the dismissal of an appeal from interlocutory decisions.
Although the appeal appeared weak, it had been dismissed without a hearing on the merits, making it inappropriate to conclude that the appeal had no tenable basis in fact or law.
Serious allegations made by the appellant against a Tribunal member, a party and solicitors did not justify a costs order because the Appeal Panel was not satisfied that they caused additional costs.
Background
The appellant, a lot owner, had commenced various proceedings against the owners corporation. One proceeding involved an application under s 106(5) for compensation associated with alternative accommodation and orders relating to repair works. Another involved related procedural directions.
The appellant sought to appeal interlocutory decisions made on 13 February 2026 and 8 April 2026. At a callover on 24 April 2026, the Appeal Panel dismissed an application for an extension of time to appeal the February decision and refused leave to appeal the April decision. The appeal therefore did not proceed to a substantive hearing on its merits.
Following the dismissal of the appeal, the owners corporation applied for costs. The appellant later sought a stay of all proceedings, timetables and costs determinations.
Appeal issues
The Appeal Panel considered two separate questions:
Whether the appellant's application for a stay should be granted.
Whether there were “special circumstances” warranting a costs order under s 60 of the Civil and Administrative Tribunal Act 2013.
The owners corporation contended that costs should be awarded because the appeal lacked a tenable basis, was frivolous or vexatious, and because the appellant had filed extensive material and made serious allegations against others involved in the proceedings.
Decision
Stay application
The Appeal Panel held that the stay application could be determined on the papers and dismissed it. The statutory power to grant a stay was not engaged because the appellant was not seeking a stay of the decision to which the appeal related. The appeal itself had already been dismissed, leaving no proper basis for a permanent stay of the proceedings or the costs application.
Costs application
The Appeal Panel emphasised that costs in the Tribunal are exceptional and require special circumstances.
The owners corporation argued that the appeal had no tenable basis in fact or law. The Appeal Panel rejected that submission. Although the appeal grounds appeared weak, the appeal had been dismissed before any hearing on the merits. In those circumstances, the Appeal Panel considered it inappropriate to determine what would effectively be a hypothetical appeal or to conclude that the claims were untenable.
The Appeal Panel also rejected arguments that the proceedings were frivolous, vexatious, misconceived or lacking in substance. While aspects of the appeal appeared deficient, the absence of a merits hearing meant those conclusions could not properly be drawn about the proceedings as a whole.
The owners corporation further relied on extensive materials filed by the appellant and serious allegations made against a Tribunal member, a party and solicitors. The Appeal Panel accepted that such allegations may be serious and potentially unfounded, but was not persuaded that they constituted a failure to comply with the Tribunal's guiding principle or that they caused additional costs to the owners corporation. The Appeal Panel reiterated that costs are compensatory rather than punitive.
Outcome
The Appeal Panel concluded that the owners corporation had not established special circumstances warranting a departure from the ordinary rule that parties bear their own costs. Even if special circumstances had existed, the Appeal Panel stated that it would not have exercised its discretion to award costs, having regard to the appellant's self-represented status and the fact that the appeal was dismissed at the first callover.
