An Analysis of Kaur and The Owners of Code Strata Plan 58103 [2026] WASAT 40
1. Introduction
In Kaur and The Owners of Code Strata Plan 58103 [2026] WASAT 40 (Kaur), the State Administrative Tribunal dismissed a costs application by the successful respondent strata company. The decision, delivered on 15 April 2026 by Member Oldfield and Sessional Member Smith, turned on a deceptively simple point: the strata company had lodged a clear and well-expressed schedule of costs, but had failed to adduce any evidence that those costs were actually incurred.
The decision warrants attention from practitioners who appear before the Tribunal because it provides a sharp illustration of a principle that is sometimes overlooked in costs applications: that the onus lies on the party seeking costs not merely to quantify the costs claimed, but to prove, by way of evidence, that the costs were in fact incurred. Submissions, however detailed, do not constitute evidence. The decision also addresses the distinct question of whether an unrepresented party’s failure to challenge a costs claim can be treated as an implied admission – the Tribunal held that it cannot, at least where the unrepresented party does not demonstrate a sound understanding of the applicable legal principles.
This article analyses the decision in Kaur, situates it within the broader framework of costs jurisprudence in the Tribunal, and provides practical guidance for practitioners preparing costs applications. The contrasting treatment of costs in Chiropractic Board of Australia and Ebtash [2020] WASAT 86 (S) (Ebtash) – one of the authorities cited in Kaur – is examined as an example of the evidentiary standard that a successful costs application must meet.
2. Relevant Legal Framework
The starting point for costs in the Tribunal is s 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), which provides that each party is to bear their own costs unless otherwise specified. Section 87(2) confers a discretionary power on the Tribunal to order that one party pay all or a portion of another party’s costs.
The guiding principles applicable to costs applications, as summarised by the Tribunal in Kaur at [5], are well established. The onus is on the party seeking costs to satisfy the Tribunal that it is fair and reasonable to make an award of costs in all the circumstances. The rationale for a costs order is compensatory, not punitive: it exists to compensate or reimburse a party for costs incurred. The presumptions regarding costs which apply in court proceedings – including the general rule that costs follow the event – do not apply in Tribunal proceedings. Where there is a genuine dispute, parties should expect to bear their own costs unless the circumstances otherwise justify an order. A party’s failure to succeed does not, of itself, mean the party has acted contrary to the Tribunal’s statutory objectives.
These principles have been articulated and applied in numerous decisions, but the specific evidentiary requirement – that costs must be proved to have been incurred – was most clearly stated in Ebtash at [143]–[144]. In that decision, President Pritchard observed that the Tribunal must be satisfied that the costs claimed are reasonable and necessary, and that in respect of disbursements, the Tribunal “must know what disbursements have been incurred – a disbursement is unlikely to be allowed without an appropriate invoice being produced” (at [144]).
It is against this framework that Kaur must be understood. The principle that costs must be evidenced – not merely asserted – is not novel. What Kaur contributes is a practical demonstration of the consequences when that evidentiary step is omitted entirely.
3. The Facts of the Case
The substantive proceedings concerned an application by Dr Harjit Kaur under the Strata Titles Act 1985 (WA). The respondent was The Owners of Code Strata Plan 58103 (the Strata Company), which was legally represented by Taylor Smart. Dr Kaur was unrepresented throughout the proceedings (at [9]). The substantive decision was delivered orally on 19 February 2026 and was not published as at the date of these reasons (footnote 1). The Strata Company was entirely successful in defending Dr Kaur’s application (at [6]).
Following its success, the Strata Company applied for costs. The costs application was determined on the documents, without a hearing (at [3]). The material before the Tribunal comprised the Strata Company’s submissions lodged on 5 March 2026, Dr Kaur’s submissions lodged on 2 April 2026, and the Tribunal’s records of the proceedings (at [3]).
The Strata Company’s schedule of costs was described by the Tribunal as “clear and well expressed” (at [6]). However, the Strata Company lodged only submissions in support of its claim; it did not lodge any evidence – such as invoices, receipts, or an affidavit from its solicitors – supporting the schedule of costs (at [8]).
Dr Kaur did not explicitly agree that the costs had been incurred, nor did she specifically oppose the application on the basis that costs had not been proved. The Tribunal observed, however, that Dr Kaur’s submissions demonstrated she did not possess “a sound understanding of the applicable legal principles” (at [9]).
4. Analysis of the Tribunal’s Reasoning
The Tribunal’s reasoning proceeds in two steps, each of which merits analysis.
The evidentiary gap
The Tribunal first identified the fundamental deficiency in the Strata Company’s application: the absence of evidence. At [7], the Tribunal stated that “because costs are in the nature of compensation or reimbursement, it is necessary there be satisfactory evidence that the costs were in fact incurred.” The Tribunal cited Ebtash at [143]–[144] and Panegyres at [415] as authorities for this proposition.
This is the critical passage. The Tribunal drew a clear distinction between a schedule of costs (which quantifies the claim) and evidence of costs (which proves the claim). The Strata Company’s schedule, however clear, was a submission – an assertion of what was owed. Without supporting evidence – invoices, a solicitor’s affidavit, fee agreements, or trust account records – the Tribunal had no basis upon which to be satisfied that the costs were actually incurred.
At [8], the Tribunal put the point bluntly: “the strata company lodged only submissions, and submissions do not constitute evidence.”
The unrepresented party’s silence
The second limb of the reasoning addressed whether the Tribunal could treat Dr Kaur’s failure to challenge the quantum as an agreed fact. The Tribunal held that it could not, for two reasons. First, Dr Kaur did not explicitly agree (at [9]). Secondly, the Tribunal declined to treat her failure to oppose the application on the specific basis that costs had not been proved as an implied admission, because Dr Kaur was not legally represented and her submissions demonstrated a lack of understanding of the applicable legal principles (at [9]).
This reasoning reflects a broader principle of procedural fairness in Tribunal proceedings. The Tribunal was careful not to attribute forensic sophistication to an unrepresented litigant. It would be unfair to infer that Dr Kaur’s silence on a particular point constituted agreement, when her submissions as a whole revealed that she was not in a position to identify the evidentiary deficiency in the Strata Company’s application.
The combined effect of these two findings was decisive: the Tribunal had no evidence that the costs were incurred, and could not treat the absence of challenge as proof. The application was dismissed (at [10]–[11]).
5. Assessing the Consequences
The cost of the evidentiary omission
The practical consequence for the Strata Company was the loss of its entire costs claim. This is a stark outcome for a party that was entirely successful on the merits, and which had engaged solicitors to prepare what the Tribunal acknowledged was a clear and well-expressed schedule. The costs schedule presumably reflected fees that were in fact incurred – the Strata Company was represented by Taylor Smart throughout the proceedings. Yet the failure to take the elementary step of adducing evidence in support of the schedule was fatal.
The irony is that the evidentiary deficiency could have been remedied with relative ease. An affidavit from the solicitor with carriage of the matter, annexing copies of invoices rendered, would likely have been sufficient. The cost of preparing and filing such an affidavit would have been modest in comparison to the costs the Strata Company was seeking to recover.
Contrast with Ebtash
The contrast with the costs assessment in Ebtash is instructive. In that case, the Chiropractic Board of Australia sought costs of $233,899 (inclusive of disbursements and GST), ultimately recovering $178,500 (at [129], [201]–[202]). The Board supported its costs application with an affidavit from its solicitor, Ms M Naylor, dated 28 October 2020, annexing copies of all accounts rendered (at [129]). This enabled the Tribunal to undertake a detailed assessment of each item claimed, allowing or adjusting hours for each category of work. The evidentiary foundation was never in doubt; the only questions were reasonableness and necessity.
The juxtaposition is revealing. In Ebtash, evidence was adduced and costs were recovered. In Kaur, no evidence was adduced and costs were refused entirely. The merits of the underlying substantive proceeding and the quality of the costs schedule were irrelevant in the absence of proof that the costs were incurred.
6. Worked Example
Consider the following hypothetical scenario. ABC Pty Ltd successfully defends a building dispute application brought by a homeowner in the Tribunal. The dispute ran for two days and involved a jointly appointed expert. ABC’s solicitors incurred fees of $18,500 (exclusive of GST) and disbursements of $4,200, comprising the expert’s fee and filing costs.
Scenario A: The Kaur approach
ABC’s solicitors file written submissions in support of a costs application. The submissions set out the legal principles, describe the work undertaken, and attach a schedule of costs itemising the fees and disbursements claimed. No affidavit is filed. No invoices are annexed.
On the reasoning in Kaur, the Tribunal would likely dismiss the application. The schedule of costs, however detailed, constitutes submissions rather than evidence. The Tribunal cannot be satisfied that the costs were in fact incurred, and accordingly has no basis upon which to make an order.
Scenario B: The Ebtash approach
ABC’s solicitors file the same written submissions, but also file an affidavit from the solicitor with carriage of the matter. The affidavit deposes that ABC has been invoiced for the fees and disbursements particularised in the schedule, and annexes copies of each invoice. The affidavit also annexes copies of the expert’s invoice and receipt for the filing fee.
On this basis, the Tribunal has evidence that the costs were incurred. The inquiry shifts to whether the costs are reasonable and necessary – the familiar territory of costs assessment. The Tribunal may allow the full amount claimed or may reduce individual items, but the application will not fail for want of proof.
Analysis
The difference between the two scenarios is not the quantum of the claim or the merits of the underlying proceeding, but the presence or absence of evidence. The additional cost of preparing the affidavit and assembling the annexures in Scenario B would be modest – perhaps one to two hours of solicitor time. The failure to take that step in Scenario A forfeits the entire claim.
7. Practitioner Guidance: A Step-by-Step Framework
The following steps are derived from the principles stated in Kaur and Ebtash, and are intended to assist practitioners preparing costs applications in the Tribunal.
1. Step 1: Identify the evidentiary foundation before drafting submissions
Before preparing written submissions in support of a costs application, identify the evidence that will be relied upon to prove the costs were incurred. This is the threshold question: without evidence, the application will fail regardless of the strength of the underlying submissions (Kaur at [8], [10]).
2. Step 2: Prepare a solicitor’s affidavit
File an affidavit from the solicitor with carriage of the matter. The affidavit should depose to the total fees invoiced, the total disbursements incurred, and the fact that these costs were incurred in connection with the proceedings. The affidavit serves as the evidentiary bridge between the schedule of costs and the Tribunal’s assessment. In Ebtash, the affidavit of Ms Naylor provided this foundation (at [129]).
3. Step 3: Annex all relevant invoices and receipts
Annex copies of all invoices rendered by the solicitors and, where applicable, counsel. Annex receipts or invoices for disbursements. In Ebtash at [144], the Tribunal stated that “a disbursement is unlikely to be allowed without an appropriate invoice being produced.” This applies equally to professional fees: the invoice is the primary evidence that the cost was incurred.
4. Step 4: Prepare a detailed schedule of costs
The schedule should itemise the work undertaken, the time spent, the applicable rate, and the total for each category. In Ebtash, the Tribunal assessed costs item by item (at [157]–[199]), which was only possible because the Board had provided a sufficiently detailed breakdown.
5. Step 5: Address reasonableness and necessity in submissions
Written submissions should address why each category of work was reasonable and necessary. Anticipate likely objections – for example, whether the time claimed for a particular task is proportionate, or whether it was necessary to brief counsel. In Ebtash, the Tribunal assessed each item against these criteria and reduced or allowed hours accordingly.
6. Step 6: Do not assume silence is consent
Do not rely on the opposing party’s failure to challenge the quantum as an implied admission, particularly where the opposing party is unrepresented. The Tribunal in Kaur at [9] expressly declined to draw that inference. Practitioners should proceed on the basis that the Tribunal will require proof, irrespective of whether the opposing party engages with the application.
7. Step 7: Consider the applicable rate
Be aware of the rates allowed under the applicable Costs Determination. In Ebtash at [145], the Tribunal adopted a blended rate of $368.50 per hour for non-counsel legal work, having regard to the two scales applicable over the period and the seniority of the practitioners involved. Practitioners should justify any departure from the Determination rates.
8. Evidence and Arguments Available to Each Side
The party seeking costs
A party applying for costs should assemble the following evidence and arguments:
Evidence of costs incurred. An affidavit from the solicitor with carriage deposing to the fees invoiced and disbursements paid, annexing copies of all invoices and receipts. This is the minimum evidentiary requirement identified in Kaur at [7]–[8] and Ebtash at [143]–[144].
A detailed schedule of costs. The schedule should be organised by category of work (e.g., preparation, interlocutory attendances, hearing, submissions) with time, rates, and totals for each. The schedule in Ebtash was organised into 22 items, each assessed separately by the Tribunal.
Submissions on reasonableness and necessity. Address why the costs claimed were reasonable and necessary having regard to the nature and complexity of the proceedings. Refer to the applicable Costs Determination to demonstrate that the rates charged are within, or proximate to, the Determination rates.
Submissions on the conduct of the opposing party. If relevant, identify any conduct by the opposing party that impaired the Tribunal’s statutory objectives (Kaur at [5](e)). However, be mindful that a party’s failure to succeed does not, of itself, justify a costs order (Kaur at [5](f)).
The party resisting costs
Challenge the evidentiary basis. If the applicant has failed to adduce evidence that costs were incurred, submit that the application must fail for want of proof, relying on Kaur at [7]–[10].
Invoke the presumption against costs. Emphasise that s 87(1) of the SAT Act provides that each party is to bear their own costs. Costs orders in the Tribunal are the exception, not the rule, and the onus lies on the party seeking costs to justify a departure from the default position.
Challenge reasonableness and necessity. If evidence of costs has been adduced, challenge the reasonableness or necessity of specific items. In Ebtash, Dr Ebtash challenged numerous items and argued that the Board had conducted the proceedings in a way that incurred disproportionate costs (at [139], [192]). Although most items were allowed, the Tribunal did reduce some categories.
Submit that the dispute was genuine. Where the dispute was genuine and the losing party’s position was reasonably arguable, submit that the parties should bear their own costs in accordance with the Tribunal’s general approach (Kaur at [5](d)).
9. Key Takeaways for Legal Practice
1. Submissions are not evidence. A schedule of costs, however detailed and well-expressed, is a submission. It does not prove that the costs were incurred. Practitioners must adduce separate evidence – typically an affidavit annexing invoices – to establish the evidentiary foundation for a costs application (Kaur at [8]).
2. The onus is on the party seeking costs. The Tribunal will not make a costs order in the absence of a sufficient evidentiary basis. The onus does not shift to the opposing party to disprove the claim; rather, the applicant must affirmatively prove it (Kaur at [5](a), [7]).
3. An unrepresented party’s silence does not constitute agreement. The Tribunal will not treat a self-represented litigant’s failure to challenge quantum as an implied admission, particularly where the litigant’s submissions reveal a limited understanding of the applicable principles (Kaur at [9]).
4. The compensatory rationale demands proof. Because costs orders are compensatory rather than punitive, the Tribunal must be satisfied that the costs claimed were actually incurred. A party cannot be “compensated” for costs it has not proved it incurred (Kaur at [5](b), [7]).
5. Disbursements require invoices. A disbursement is unlikely to be allowed without production of an appropriate invoice (Ebtash at [144]). This principle extends naturally to all categories of costs: the Tribunal needs documentary proof.
6. The Ebtash costs assessment provides a model. Practitioners preparing costs applications should study the Tribunal’s item-by-item assessment in Ebtash at [157]–[199] as a model for the level of detail and evidentiary support that a successful costs application requires.
7. Success on the merits is necessary but not sufficient. The Strata Company in Kaur was entirely successful in defending the application. Its schedule was clear. Yet its costs application was dismissed. Success on the merits creates the opportunity for a costs application; it does not discharge the evidentiary burden.
8. The cost of proving costs is modest. The evidentiary deficiency in Kaur could have been remedied with an affidavit and annexed invoices – a task that would have required one to two hours of solicitor time. The cost of not doing so was the loss of the entire costs claim.
9. Adopt a robust but evidence-based approach. The Tribunal takes a “robust and broad-brush approach” to costs assessment (Ebtash at [134]) and does not descend into an inquiry into small items. However, that approach presupposes that there is evidence to assess. The broad-brush cannot paint without paint.
10. Conclusion
Kaur is a brief decision, but its practical significance should not be underestimated. It stands as a clear reminder that costs applications in the Tribunal require evidence, not merely argument. The distinction between submissions and evidence is fundamental – and the consequences of overlooking it are absolute.
The decision also carries a broader systemic message. In a jurisdiction where costs do not follow the event and where each party is presumed to bear its own costs, the evidentiary burden on the party seeking costs is not a mere formality. It reflects the Tribunal’s principled approach to costs: that no order should be made unless the Tribunal is satisfied, on the evidence, that it is fair and reasonable to do so.
Practitioners appearing before the Tribunal should treat the evidentiary requirements for costs applications with the same rigour they bring to the substantive proceeding. An affidavit, a set of invoices, and a detailed schedule are the minimum requirements. Without them, even the most meritorious costs application may fail – as the Strata Company in Kaur discovered.