Does my win in obtaining 2 Orders (minor common property repair matters) exclude me from any costs up to date.
Let’s look at what section 104 of the Act says:
An owners corporation cannot, in respect of its costs and expenses in proceedings brought by or against it for an order by the Tribunal, levy a contribution on another party who is successful in the proceedings.
An owners corporation that is unsuccessful in proceedings brought by or against it for an order by the Tribunal cannot pay any part of its costs and expenses in the proceedings from its administrative fund or capital works fund, but may make a levy for the purpose. In this section, a reference to proceedings includes a reference to proceedings on appeal from the Tribunal.
So there you have it. The owners corp must raise a special levy to pay its legal expenses and you must be excluded from that levy.
The OC will doubtless argue that it substantially or partially won the case, and only needs to exclude you from a proportion of the costs covering the issues it lost, so one key aspect of Section 104 is the phrase “cannot pay any part of its costs and expenses”.
What does that mean? Section 104 doesn’t come up all that often in Tribunal cases and when it does, it tends to be a side issue and a bit murky.
In this case, for instance, the Appeals Board doesn’t consider 104 to be relevant because the Owners Corp hadn’t yet paid for legal advice from its admin fund, in contravention of S104. However, it leaves open the possibility of a future challenge if it did.
This other case at the Appeals Panel also spells out that any breach of Section 104 has to be challenged once the breach has occurred (in my non-legal opinion). According to that ruling, the Tribunal has no power to order the OC to comply with Section 104 but it does have the power to enforce it if it’s breached.
Now, I have to stress that his is my own, non-legal opinion. Just reading the two cases cited, it’s clear that the arguments are pretty complicated and arcane and open to wide interpretation.
You need professional legal advice if you are going to pursue this and you then need to ask yourself if it’s worth it in the end.