Losing at NCAT doesn’t automatically mean paying the other side’s lawyers — but it can happen
Strata disputes have a knack for starting small. A disagreement over a by-law, common property or a committee decision can quickly grow into submissions, evidence, hearings and, inevitably, lawyers’ invoices. Then comes the question nobody particularly enjoys asking: who pays for all of it?
That’s what makes [2026] NSWCATAP 225 worth understanding, although the case isn’t quite the straightforward strata enforcement dispute it might first appear to be. The actual proceeding was Brandes v Community Association DP No 270482 (No 2), decided by the NCAT Appeal Panel on 21 July 2026. It dealt with costs arising from earlier community-title proceedings, rather than an owners corporation simply chasing a defaulting lot owner for its legal expenses.
There’s an important misconception to clear up from the outset. Brandes does not give owners corporations a blanket right to put their lawyers’ bills onto the account of any owner who breaks a by-law or loses a dispute.
| Issue | What the decision means | Why it matters |
| Usual NCAT costs rule | Each party generally pays its own costs | Losing doesn’t automatically mean paying the winner’s lawyers |
| “Special circumstances” | NCAT can award costs when the statutory test is met | Costs remain discretionary |
| Legal representation | Leave may be required in Consumer and Commercial Division proceedings | Refusal of leave doesn’t necessarily make preparatory legal work unrecoverable |
| Preparation costs | Legal assistance preparing required material may potentially be claimed | Lawyers can assist behind the scenes even where a party represents itself |
| Weak or misconceived proceedings | Can contribute to a finding of special circumstances | Pursuing a poor case can have financial consequences |
What Brandes actually tells us about NCAT costs
Section 60 of the Civil and Administrative Tribunal Act 2013 (NSW) begins with a fairly reassuring rule: parties ordinarily pay their own costs. NCAT can depart from that position where “special circumstances” justify doing so. Those circumstances can include proceedings that are frivolous, vexatious, misconceived or lacking substance, as well as conduct that unnecessarily disadvantages another party.
That’s a long way from saying, “breach a strata by-law and you’ll automatically pay both legal bills”.
The more interesting question in Brandes was what happens when an owners corporation or community association isn’t permitted to have a lawyer formally represent it at the hearing, but still pays lawyers to prepare submissions and other material beforehand.
The Appeal Panel saw no reason, in principle, why those preparatory legal expenses couldn’t form part of a costs claim. Put another way, being refused leave for legal representation at the hearing doesn’t necessarily make every dollar spent obtaining legal assistance behind the scenes unrecoverable.
There was still an important hurdle. Special circumstances had to be established. In Brandes, the Appeal Panel considered the appellant’s case weak and misconceived, bringing it within a consideration identified in s 60(3)(e). Even then, a costs award is compensatory rather than a punishment, and there is no guarantee that every dollar spent will ultimately be recovered.
For strata buyers, the broader lesson is less about automatically inheriting someone else’s lawyers’ bill and more about understanding the dispute you’re buying into. Before exchange, ask: • Are there current NCAT or court proceedings involving the scheme? • Do the records show recurring by-law disputes? • Are there unresolved notices affecting the lot? • Have renovations involving common property been properly approved? • Are special levies funding litigation? • Do recent meeting minutes reveal significant legal expenditure?
A dispute in the strata records doesn’t automatically mean you’ll inherit the seller’s personal liability. But it shouldn’t be dismissed as background noise either. Active litigation can affect budgets, levies, management and everyday life in the scheme well after you’ve collected the keys.
Flash Conveyancing Advice
When buying strata, don’t stop at the quarterly levy figure. Look through the strata records for meeting minutes, legal expenditure, current proceedings, special levies and approvals for alterations affecting the lot. A dispute doesn’t necessarily make a property a poor purchase, but you should understand what the argument is about — and how it may affect owners financially — before exchange.
Flash Conveyancing, led by Julian & Renee, specialises in property transactions throughout NSW. With strata property, the apartment or commercial suite is only part of what you’re buying into. The financial health, governance and disputes of the owners corporation can matter just as much as what’s happening inside the lot itself.
A careful pre-purchase review can uncover levy liabilities, proposed special levies, litigation and potentially problematic renovation history. If a kitchen, bathroom, balcony or other renovation has affected common property, the relevant approvals and by-laws deserve attention. A renovation looking fantastic in the sales photos doesn’t necessarily mean the paperwork behind it is equally impressive.
Brandes also offers a useful reality check about legal costs. Losing at NCAT doesn’t automatically mean paying the winner’s lawyers. Each party ordinarily bears its own costs, and anyone seeking a costs order generally needs to establish the statutory basis for one. The decision confirms that legal preparation expenses may potentially be recoverable in appropriate circumstances; it doesn’t create an open-ended power to drop every enforcement invoice onto another owner’s ledger.
Julian and Renee personally oversee files as part of Flash Conveyancing’s boutique, human-led service. According to the practice’s own procedures, settlement payment directions are directly voice-verified, while confidential client information is supported by offline local-storage measures.
Flash Conveyancing assists clients throughout Sydney, Newcastle and Wollongong, as well as Blacktown, Hawkesbury, the Blue Mountains, The Hills, Hornsby and Parramatta. The practice also services Acacia Gardens, Angus, Arndell Park, Blacktown, Colebee, Glendenning, Glenwood, Grantham Farm, Kellyville Ridge, Kings Langley, Marsden Park, Melonba, Oakhurst, Parklea, Quakers Hill, Riverstone, Schofields, Seven Hills, Stanhope Gardens, Tallawong, The Ponds, Baulkham Hills, Beaumont Hills, Bella Vista, Castle Hill, Kellyville, Kenthurst, North Rocks, Northmead, Rouse Hill, Vineyard, Windsor, Annangrove, Box Hill, Cattai, Dural, Gables, Galston, Glenhaven, Glenorie, Maraylya, Middle Dural, Nelson, North Kellyville, Norwest and Winston Hills.
The lesson from Brandes is straightforward: strata litigation can become expensive, but legal costs don’t automatically follow the loser. If you’re buying into a scheme where a dispute is already underway, find out what the fight is about, how it’s being funded and what it could mean for owners after settlement.
