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Be careful – Wrong jurisdiction means you can win, but still loose

The Supreme Court has recently ordered a lot owner who succeeded in litigation against an owners corporation to pay the owners corporation’s costs because the dispute between the parties could have been dealt with by NCAT. This is one of the first times a litigant has been punished by an adverse costs order for approaching the Supreme Court for relief which could have been given by NCAT. (EB 9 &10 Pty Ltd -v- The Owners – SP 934 [2018] NSWSC 464. )

Normally, the loser of a court case is ordered to pay the legal costs of the winner. This is the usual rule that applies to most litigation. However, in this case, the Supreme Court took a different approach. Even though the owners corporation lost the case, the Court ordered the lot owner to pay the owners corporation’s costs.

The strata legislation gives the NSW Civil and Administrative Tribunal (NCAT) broad power to resolve Strata disputes. This means that NCAT is able to make orders to resolve most types of strata disputes including disputes between lot owners and owners corporations. This reflects the intention of the NSW Parliament that NCAT should sort out most strata disputes, not the Supreme Court.