In a recent case, Karpinski v The Owners – Strata Plan No 1731 [2026] NSWCATAP 12, the NSW Civil and Administrative Tribunal (NCAT) decided not to “exercise its discretion” to order costs, because, the winning team (the Owners) did not forewarn the other side (Karpinski, who was a self-represented litigant) that costs will be sought.

In fact, the issue was that the Owners ‘seemed’ to have no legal representatives which basically meant that even if the jurisdiction of NCAT was ‘enlivened’ to make costs orders after the Tribunal found that Karpinski essentially brought a bad case or a case that was bound to fail, it decided not to make the order.

Again, all of this was because the Owners did not indicate that they would bring costs applications in writing, and they seemed not have legal representation at the ‘relevant and material’ time.

It is extremely important to ensure that in any case (whether in a court, in a tribunal, in a commission, or in a ‘board’) that you put the other side on notice that costs will be sought (and you need to be specific about “legal costs” being sought).

Additionally, you will need to include “indemnity costs” in all these correspondences.

The Supreme Court has previously said that where no mention of indemnity costs is made, no indemnity costs orders will be actually made, especially in matters involving offers and counter-offers (e.g. see Davis v Swift (No. 2) [2015] NSWCA 137 (21 May 2015)).

To ensure a client can claim indemnity costs, we at Papallo Kouchoo lawyers, explicitly notify the other party in writing (e.g., in a ‘Calderbank offer letter’) that if they refuse our client’s offer, then our client will use that refusal to seek costs on an indemnity basis from the date of the offer (if our client obtains a favourable result).

Even in the normal course of things, to avoid the ‘Karpinski problem’ as set out above, we always notify the other side (and have done so, long – and decades – before the Karpinski case) that costs will be sought.

Our clients generally always reserve their rights in that regard unless there is a very good tactical or strategic reasons not to do so.

In any event, at Papallo Kouchoo Lawyers we ensure to advise you fully on many potential traps and problems in relation to costs and specifically, in respect of the particular circumstances of your case.

If you have any questions, please do not hesitate to contact us for an obligation free professional consultation.