Allen v TriCare

Background

1. It is not necessary here to repeat the somewhat convoluted history of these matters. It is sufficient to note that the proceedings relevantly came before the Tribunal at first instance on 29 February 2016. By this stage, the proceedings were limited to applications by the owner to terminate the residents' residential site agreements and to obtain orders for possession of their residential sites. The owner was successful in each set of proceedings and on 6 April 2016 the Tribunal made orders as follows: "(1) The residential tenancy agreements of each of the respondents is hereby terminated; (2) The respondents will deliver up vacant possession of their respective residential sites on or before 20 September 2016; (3) Notwithstanding order 2, the orders for possession are suspended until the respondents receive payment in full, of the amounts determined in these reasons to be the values of the dwellings (or until payment in full is tendered) namely: Site 39 $60,000 Site 51 $85,000 Site 54 $20,000 Site 58 $45,000 Site 59 $40,000 (4) Once payment in full is made or tendered by the applicant to the respondents then in respect of those respondents who have received payment in full or been tendered payment in full the suspension of the order for possession is lifted; and (5) Liberty to renew."
2. In each of the appeals, the owner was again successful. On 19 September 2016, the Appeal Panel ordered in respect of each appeal that: "(1) The Appeal is dismissed. (2) Orders 1, 2, 3, 4 and 5 made on 6 April 2016 are confirmed."
3. As not all the residents are in the same position, it is useful to identify for each resident the relevant number of their residential site, the file number of the relevant application at first instance and the file number of each appeal and the value of their dwelling as found by the Tribunal at first instance. They are as follows: Resident/s Site No. Application Appeal Value of dwelling Phillip Tucker 39 RP13/34743 AP16/25372 $60,000 Judy Tucker 51 RP13/34744 AP16/25414 $85,000 Kevin and Lorraine Byng 54 RP13/34745 AP16/24875 $20,000 Sue Allen 58 RP13/34746 AP16/22096 $45,000 Beryl Anderson 59 RP13/34741 AP16/25422 $40,000

1. The owner commenced the proceedings at first instance originally in the Consumer, Trader and Tenancy Tribunal (the CTTT), prior to the creation of NCAT. After the CTTT was abolished on 1 January 2014, NCAT could determine these proceedings at first instance because of the operation of the transitional provisions found in cl 6 and 7 of Sch 1 to the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). We explained this in Allen v TriCare (Hastings) Ltd [2016] NSWCATAP 216 at [8]-[9].
2. A decision of the Tribunal made under those transitional provisions and based upon the Residential Tenancies Act 2010 was held to be an internally appealable decision within s 80 of the NCAT Act in NSW Land and Housing Corporation v Diab [2014] NSWCATAP 8 for the reasons given at [35] to [52]. For substantially the same reasons, the decisions of the Tribunal made in these proceedings at first instance under the transitional provisions and based upon the Residential Parks Act and the Land Lease Communities Act are also internally appealable decisions within s 80 of the NCAT Act.
3. The residents lodged their appeals on 26 April 2016.

Operation of the Relevant Costs Provisions

1. The general provision for costs in the Tribunal is s 60 of the NCAT Act which provides: "60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section: costs includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal."
2. Section 60, however, is in Pt 4 of the NCAT Act. Section 35, which is also in Pt 4, provides: "35 Application of Part Each of the provisions of this Part is subject to enabling legislation and the procedural rules."
3. As a result, s 60 is subject to the "procedural rules", which are defined in s 4(1) of the NCAT Act as meaning each of: "(a) the Tribunal rules, (b) the regulations in their application to the practice and procedure of the Tribunal."
4. This definition leads to the definition of "Tribunal rules" in s 4(1) of the NCAT Act: "Tribunal rules means the rules of the Tribunal made by the Rule Committee."
5. The Tribunal rules made by the Rule Committee are the Civil and Administrative Tribunal Rules 2014 (the NCAT Rules). The relevant rules are rr 38 and 38A.
6. Rule 38 provides: "38 Costs in Consumer and Commercial Division of the Tribunal (1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if: (a) the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under clause 10 (2) of Schedule 4 to the Act in relation to the proceedings, or (b) the amount claimed or in dispute in the proceedings is more than $30,000.
7. Rule 38A provides: 38A Costs in internal appeals (1) This rule applies to an internal appeal lodged on or after 1 January 2016 if the provisions that applied to the determination of costs in the proceedings of the Tribunal at first instance (the first instance costs provisions) differed from those set out in section 60 of the Act because of the operation of: (a) enabling legislation, or (b) the Division Schedule for the Division of the Tribunal concerned, or (c) the procedural rules. (2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal.
8. Rule 38A applies to the present appeals because: 1. They were lodged after 1 January 2016; and 2. The first instance cost provisions differ from those set out in s 60 because of the operation of the "procedural rules" in that: 1. the proceedings at first instance were for the exercise of functions under the Residential Parks Act and the Land Lease Communities Act; 2. Schedule 4, cl 3 of the NCAT Act allocates such proceedings to the Consumer and Commercial Division; 3. thus, in those proceedings "the first instance costs provisions" included r 38 of the NCAT Rules, which modifies the operation of s 60. [1]
9. In the present appeals, r 38A(2) requires the Appeal Panel to apply the first instance costs provisions, which is s 60 as relevantly modified by r 38(2), when deciding whether to award costs of the appeals.
10. Rule 38(2) allows the Appeal Panel to award costs in the absence of special circumstances warranting such an award if either of the requirements in (a) or (b) of that subrule is satisfied.
11. The requirement in r 38(2)(a) has not been satisfied since the Appeal Panel has not made an order under cl 10(2) of Sch 4.
12. It follows, in summary, that the Appeal Panel can: 1. Under r 38(2)(b), award costs even in the absence of special circumstances for any of the appeals if "the amount claimed or in dispute in the proceedings is more than $30,000"; or 2. Under s 60(2), award costs for any of the appeals if the amount claimed or in dispute is $30,000 or less, but only if it is satisfied that there are special circumstances warranting such an award.
13. We shall consider first whether costs can be awarded under r 38(2)(b). Then, to the extent necessary, we shall address whether there are special circumstances that enliven the power to award costs under s 60(2) and whether such an award should be made.

Can costs be awarded under r 38(2)(b) in the present appeals?

1. For us to be able to award costs without being satisfied that there are special circumstances, "the amount claimed or in dispute in the proceedings [must be] more than $30,000".

Owner's submissions

1. The owner submits that the word "proceedings" "relates to the hearing of the matter holistically", which we take to mean treating all of the appeals as if they were one. It is then contended that: 1. "[T]he value of the residents' dwellings was a major part of the dispute before the Deputy President [at first instance]"; 2. "[T]hat dispute continued in the appeals before the Appeal Panel" because the residents appealed against orders 1 to 4 made at first instance and the appeals involved "dispute over the valuation evidence of Mr Hoolihan"; and 3. The total of the amounts referred to in order 3, which was one of the orders appealed against, was far in excess of $30,000.
2. Alternatively, even if the appeals are considered individually for the purposes of r 38(2), the amount claimed or in dispute in each of the appeals, apart from that relating to the Byngs, was more than $30,000, for reasons similar to those already given.

Residents' submissions

1. In response, the residents submit that: 1. "[T]hese proceedings had nothing to do with quantum of any sort, other of course than valuations for the purposes of [s 130A of the RP Act] which were required to enliven jurisdiction of s113(3A)(b) RP Act to give the park owners the orders it ultimately was seeking"; 2. "[T]he valuations were non-binding, were a guide and any dispute as to the valuations were essentially irrelevant to the applications before the Tribunal being an application from the park owner for termination and possession"; and 3. "[N]o application was made by the park residents for compensation. As such r 38[(2)(b)] of the [NCAT Rules] is not enlivened and the Respondents submission on this point must fall away".

What are "the proceedings"?

1. The owner's first submission was that there was only one set of proceedings for the purposes of r 38(2)(b) and consequently "the totality of the amount in dispute in the proceedings heard by Deputy President Westgarth and also by the Appeal Panel exceeds $30,000". This submission was elaborated in writing as follows: "10) The CAT Act does not define the term "proceedings". The term can be ambiguous if matters are heard simultaneously and all evidence relates to each matter. In the present case, both when first heard by Senior Member Bassett and when heard by the Deputy President, their judgments suggest the matter was dealt with as one proceeding with a number of respondents, albeit that there were various Tribunal file numbers. 11) The issue appears to be whether the word "proceedings" in the phrase "the amount claimed or in dispute in the proceedings is more than $30,000" in Rule 38(2)(b) relates to the hearing of the matter, or each individual application even if those applications were heard as one. 12) If the word "proceedings" in Rule 38 relates to the hearing of the matter holistically, then the totality of the amount in dispute in the proceedings heard by Deputy President Westgarth and also by the Appeal Panel exceeds $30,000."
2. The word "proceedings" is used extensively in the NCAT Act but there is no definition of that term in the NCAT Act or in the Interpretation Act 1987 (NSW) (the Interpretation Act). The authorities establish that: 1. "Proceedings" is a word of "great generality" and takes its precise meaning from the context in which it appears: Clarence v Electricity Commission of New South Wales (1990) 20 NSWLR 1 at 4; Amaca Pty Ltd v Cremer (2006) 66 NSWLR 400, [2006] NSWCA 164 at [75]. 2. The word "proceedings" ordinarily refers to the "method permitted by law for moving a court or judicial officer to some authorised act" or "any application by a suitor to a court in its civil jurisdiction for its intervention or action": Cheney v Spooner (1929) 41 CLR 532 [1929] HCA 12 at 536-537 and 538-539.
3. The word "proceedings" is used in the NCAT Act and NCAT Rules, including in Division headings (which are part of the Act by operation of s 35 of the Interpretation Act), on many occasions. Examples include, most relevantly for present purposes, the following: 1. The guiding principle for the NCAT Act and the NCAT Rules, in their "application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" (s 36(1)). 2. The various types of jurisdiction exercised by the Tribunal are described as being exercised "in proceedings for the exercise of its [specified type of] jurisdiction" (ss 29(2), 30(2), 31(2), 32(2) and 33(2)). 3. Under the heading to Div 2 of Pt 4, "Commencement of proceedings", the NCAT Act specifies, among other things, what constitutes an application (s 39), how an application or appeal is to be made (s 40) and what effect a pending general application or appeal has (s 43). Section 40 is supplemented by rr 23, 24 and 25 which provide that an application or appeal is made by lodging, among other things, the appropriate application form or notice of appeal. 4. Under the heading to Div 3 of Pt 4, "Participation in proceedings", the NCAT Act deals with, among other things, who may be ordered to be joined "as a party to proceedings" in the Tribunal (s 44), when a "party to proceedings in the Tribunal" is entitled to be represented (s 45). 5. Under the heading to Div 4 of Pt 4, "Conduct of proceedings", the NCAT Act provides for hearings generally to be open to the public (s 49), when "[a] hearing is required for proceedings" (s 50), when "[t]he Tribunal may adjourn proceedings" (s 51), reconstitution of the Tribunal "during proceedings" (s 52), irregularities "in relation to the commencement or conduct of proceedings" (s 53) and dismissal of proceedings (s 55). 6. Under the heading to Div 5 of Pt 4, "Determination of issues and proceedings", the NCAT Act permits the Tribunal to "reserve its decision in relation to any proceedings" (s 56), to give effect to settlement agreements by making "such orders (including an order dismissing the application or appeal that is the subject of the proceedings) as it thinks fit" (s 59), to "award costs in relation to proceedings" in certain circumstances and the costs include "the costs of, or incidental to, proceedings in the Tribunal" (s 60) and empowers "the member who presided at the proceedings" to correct certain errors (s 63). 7. Under s 64, the Tribunal may, among other things, prohibit or restrict the publication of "any report of proceedings in the Tribunal".
4. In addition, it is inherent in provisions such as ss 44 and 45 that only certain persons are parties to the "proceedings". The parties to proceedings are set out in rr 27 to 30 of the NCAT Rules. For example, rr 27 and 29 provide: "27 Parties to proceedings for general decision or administrative review decision The parties to proceedings for a general decision or administrative review decision are: (a) the applicant, and (b) if an order or other decision is sought from the Tribunal in respect of a person or body (other than the applicant) - the person or body in respect of whom the order or other decision is sought, and (c) if the Attorney General or another Minister intervenes in the proceedings under section 44 of the Act - the Attorney General or Minister, and (d) any other person who is made a party to the proceedings by the Tribunal under section 44 of the Act, and (e) any other person required to be joined or treated as a party to the proceedings by a Division Schedule for a Division of the Tribunal, enabling legislation or the procedural rules. … 29 Parties to internal appeal The parties to an internal appeal are: (a) the appellant, and (b) any person or body (other than the appellant) who was a party to the proceedings before the Tribunal at first instance, and (c) if the Attorney General or another Minister intervenes in the proceedings under section 44 of the Act - the Attorney General or Minister, and (d) any other person who is made a party to the proceedings by the Tribunal under section 44 of the Act, and (e) any other person required to be joined or treated as a party to the proceedings by a Division Schedule for a Division of the Tribunal, enabling legislation or the procedural rules."
5. From these rules, it is apparent that the parties to "proceedings" commenced by the lodging of an application or a notice of appeal are limited to: 1. The applicant or appellant; 2. Those against whom the orders are sought; 3. In the case of an internal appeal, anyone who was a party to the proceedings at first instance; and 4. Any intervener or person joined under s 44 of the NCAT Act or any person falling with in par (e) in each case.
6. These examples from the NCAT Act and the NCAT Rules demonstrate that "proceedings" refers to the process set in motion, or commenced, by lodging an application or notice of appeal. That process includes the steps taken by the Tribunal to hear and determine whether to grant the relief sought in the application or notice of appeal, as well as any interlocutory or ancillary steps. Proceedings are defined by the subject matter raised in the application or notice of appeal. The participants in proceedings are limited to the parties determined in accordance with s 44 of the NCAT Act and the NCAT Rules.
7. The Tribunal may hear two or more proceedings at the same time, especially if that is conducive to the just, quick and cheap resolution of the real issues in each set of proceedings, as required by s 36(1) and (2) of the NCAT Act. Nothing in the NCAT Act or the NCAT Rules suggests, however, that when such proceedings are heard together there is only one set of proceedings rather than two or more separate proceedings, absent an order of the Tribunal in effect consolidating the different sets of proceedings into one.
8. Initially, all of the appellants joined in filing just one notice of appeal against all of the decisions in each of the first instance proceedings. This was understandable given the combined form of the orders made at first instance. But, because there were separate proceedings below with different parties, the registry required a separate notice of appeal to be filed in respect of each of the present appeals. This was done but the notices of appeal were identical and did not identify which person was the appellant in respect of each notice of appeal. As a result, the registry had to allocate which notice of appeal related to which appellant or appellants and to which proceedings at first instance. This approach by the registry was appropriate in the light of the guiding principle in s 36(1) and the requirements in ss 36(4) and 38(4) of the NCAT Act.
9. No order has ever been made which would have the effect of consolidating the five appeals into one set of proceedings.
10. In all of these circumstances, and having regard to how the word "proceedings" is used in the NCAT Act and the NCAT Rules, in our view, the present appeals are each to be treated as separate proceedings, for the purposes of r 38.
11. It follows that, if r 38(2)(b) is to apply to any of the five appeals under consideration, either: 1. The "amount claimed"; or 2. The "amount … in dispute", in that appeal must be more than $30,000.

Was the "amount claimed" in any of the appeals more than $30,000?

1. In the case of an internal appeal, the "amount claimed … in the proceedings" can be determined by considering what orders the appellant seeks on the appeal. If those orders sought include an order that the respondent pay a sum of more than $30,000, expressly or impliedly, then the Tribunal should conclude that the amount claimed in those proceedings was more than $30,000. If the substantive orders sought do not involve any express or implied claim to any amount, it is difficult to see how there is any "amount claimed" for the purposes of r 38(2)(b).
2. In the present appeals, the substantive order sought in each case was: "i) the residential park owner's application for termination of residential site agreements and possession is dismissed."
3. This order does not involve any express claim for any sum. Nor does it impliedly involve a claim for any sum of money. Each of the proceedings at first instance concerned only the owner's application for orders for termination and possession. The order sought by the appellants did not involve in substance a claim that the Appeal Panel should make orders for the payment of more than $30,000 in their favour. Although order 3 of the Tribunal at first instance referred to the values of the dwellings, the purpose of that order was only to suspend the operation of the possession order, order 2, until the owner paid or tendered to the respective resident or residents the value of each dwellings, as determined by the Tribunal. Order 3 was not an order for the payment of any money. Even if we are wrong in this regard, the appellants did not seek on appeal to have the amounts referred to in order 3 increased, whether by more than $30,000 or any other amount. Accordingly, there was no express or implied claim for more than $30,000 in any of the appeals.
4. For these reasons, we do not accept that the amount "claimed" in the proceedings constituted by each appeal was "more than $30,000".
5. We turn now to question whether the amount "in dispute" in the proceedings was more than $30,000.

Was the "amount … in dispute" in any of the appeals more than $30,000?

1. The inclusion of the words "or in dispute" after "the amount claimed" in r 38 indicates that amounts may be in dispute in proceedings even if they are not the subject of a specific claim for an order for payment.
2. The parties did not bring to our attention any authorities that have considered the meaning of the expression "the amount … in dispute in the proceedings is more than $30,000" as it appears in r 38 of the NCAT Rules or the same wording that appeared in cl 20 of the Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW). Nor have we discovered any such authorities.
3. In these circumstances, in our view, we can gain some assistance in construing the words "the amount … in dispute in the proceedings" from cases that deal with provisions that restrict the right of appeal to appellate courts depending on the amount that was at issue in the matter.
4. An example of this type of provision is s 101(2)(r)(i) of the Supreme Court Act 1970 (NSW) (Supreme Court Act).
5. In seeking to derive assistance from such sources, we bear in mind that any such assistance can only be limited because: 1. The wording of these provisions is different from that of r 38; and 2. The provisions serve a different purpose.
6. The relevant wording of s 101(2)(r)(i) of the Supreme Court Act is: "an appeal… that involves a matter at issue amounting to or of the value of $100,000 or more".
7. What is at issue in legal proceedings are the allegations of fact or contentions of law that are in dispute between the parties. This is captured in definition 5 of "issue" (Macquarie Dictionary Online Ed): "5. a point in question or dispute, as between contending parties in an action at law."
8. Thus, the expression "matter at issue amounting to or of the value of [a specified amount or more]" can be seen as referring to circumstances where, in substance, "the amount … in dispute in the proceedings Is more than [a specified amount]".
9. In Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267, the Court of Appeal collected and considered the authorities on s 101(2)(r)(i) of the Supreme Court Act. The Court said (at [80]): "The following principles emerge from the cases which consider the requirements set out in s 101(2)(r) of the Supreme Court Act: (1) Section 101(2)(r)(i) involves "a matter at issue" amounting to or to the value of $100,000 or more. (2) Under s 101(2)(r)(i) the determinative factor is not the amount of the judgment, nor the amount of the original claim, but the value of the matter at issue in the appeal: Dunn v Ross Lamb Motors [1978] 1 NSWLR 26 at 28; Jensen v Ray [2011] NSWCA 247 at [7] per Brereton J with whom Campbell JA and Sackville AJA agreed; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [13] per Basten JA with whom Tobias AJA agreed. (3) The phrase "at issue" must be construed as meaning truly at issue or, inversely, not unrealistically at issue: Gillard v Hunter Wire Products Pty Ltd (No 2) [2001] NSWCA 450 at [11] per Priestley JA and Sperling J; Jensen v Ray at [11]. (4) A "matter at issue" involves a realistic prospect that the appeal would change the wealth of the appealing party by more than $100,000, it being the realistic worth of the claim that must exceed $100,000, rather than the property the subject of the claim: Pegela Pty Ltd v Oates [2010] NSWCA 186, Young JA, with whom Allsop P and McColl JA agreed; Jensen v Ray at [12]. (5) There are material differences between the requirements under s 101(2)(r) and those under the pre-1984 versions of the Judiciary Act 1903 (Cth) considered by the High Court in cases such as Moller v Roy (1975) 132 CLR 622 at 625 (Barwick CJ): see Blackmore v Browne; Kara Kar Holdings Pty Ltd v Blackmore [2011] NSWCA 114 at [31] ‑ [32] per Campbell JA and Jensen v Ray at [10]. (6) Care must be exercised in relying for the purposes of 101(2)(r) of the Supreme Court Act upon authorities under the pre-1984 s 35 of the Judiciary Act, as the language of the statutes is quite different: Peter Hansen v Slattery Transport (NSW) Pty Ltd [2011] NSWCA 193 at [2] per Basten JA; Jensen v Ray at [10]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das at [13]. ... (8) Notwithstanding the difference in the language used in subsections (i) and (ii) of s 101(2)(r), the question whether an appeal lies as of right turns on whether the right claimed by the appellant, but denied by the judgment, prejudices the appellant to the amount of $100,000: Nanschild v Pratt at [28]. ..."
10. Adapting these principles to the circumstances of the present appeals and having regard to the specific wording of r 38, it appears to us that in applying r 38(2)(b): 1. The determinative factor is the amount in dispute in each appeal, not the amount in dispute in the proceedings at first instance; 2. The phrase "in dispute" is to be construed as meaning truly in dispute or at issue or, inversely, not unrealistically in dispute; 3. Whether "the amount … in dispute" in each appeal is more than $30,000 depends on whether there is a realistic prospect that in each appeal the wealth of the appealing party would be changed by more than $30,000 or, put another way, whether the right claimed by the appealing party, but denied by the decision at first instance, prejudices that party to an amount in excess of $30,000; 4. The fact that the value of the property the subject of any appeal exceeds $30,000 does not, of itself, mean that "the amount … in dispute" in that appeal is greater than $30,000.
11. At the outset, it is important to observe that the fact that each of the dwellings (apart from the Byngs') situated on the residential sites was valued at more than $30,000 does not mean that the amount in dispute in each appeal was greater than $30,000. The appeals were against termination and possession orders in respect of the residential sites, which belong to the owner, and not the dwellings, which belong to the residents. Thus, the property the subject of the appeal was the right to possession of the residential sites and not the dwellings or any rights in relation to the dwellings. As a result, the value of the dwellings should not determine what the amount in dispute was in any of the appeals.
12. What was actually in dispute in each of the present appeals can generally be ascertained from the grounds of appeal set out in each appellant's notice of appeal, Jensen v Ray [2011] NSWCA 247 at [11]. In each of the appeals, the grounds of appeal in their final form were as follows: "i) The Tribunal lacks the jurisdiction to proceed with a valuation of the residents dwellings pursuant to s130A as the necessary jurisdictional fact required to enliven its power was absent, being no proposed offer from any of the residents to sell their dwellings to the park owner as s130A cannot be enlivened, s113(3A)(b) can not be satisfied. This being the case, orders for termination and possession of each residential site cannot be made. ii) The Tribunal erred in deciding that s113(3A)(b) can operate as a unilateral contract. iii) The Tribunal erred in deciding that there is no practical difference between the requirements set out in s113(3A)(b) and (c) iv) The Tribunal erred in deciding that the value of a dwelling excludes the bundle of rights attached to the residents dwelling under a residential site agreement (residential parks). v) [deleted] vi) The Tribunal erred in attributing weight to the Expert Report and evidence of Mr. Hoolihan. vii) The Tribunal erred in relying on the valuations of the dwellings as provided by Mr. Hoolihan in order to determine their value for the purposes of s130A. viii) The Tribunal failed to take into account the orders from the Land & Environment Court in relation to the termination date for Mr Tuckers tenancy. ix) The Parties and the Tribunal erred in failing to take into account the provisions of clause 10, Schedule 2 of the Residential (Land Lease) Communities Act 2013, which came into effect on 1 November 2015 and which is applicable to the determination of compensation in this matter. x) Pursuant to the compensation regime as provided for by the Residential (Land Lease) Communities Act 2013, compensation in this matter is to be provided in accordance with s141 of that Act."
13. Grounds 1 to 3 concerned the Tribunal's power to make possession orders having regard to the proper construction of ss 130A and 113(3A)(b) of the Residential Parks Act.
14. Ground 4 raised the question of the proper basis for valuing dwellings for the purposes of s 130A. Grounds 6 and 7 concerned whether there was any expert valuation evidence that would allow the Tribunal to determine the values of the dwellings under s 130A.
15. The relevance of s 130A and valuations under that section was that an order for possession of a residential site could not be made in the circumstances of the present cases unless the Tribunal below was satisfied in each case that the owner had "agreed to buy the dwelling [located on the site] from the resident at a price no less than its value, as determined by the Tribunal under section 130A", as provided in s 113(3A)(b) of the Residential Parks Act.
16. All of grounds 1, 2, 3, 4, 6 and 7 were directed to whether the Tribunal below could or should make possession orders in respect of the residential sites, under s 113 of the Residential Parks Act. Those grounds would not lead to a result that would change the wealth of the appealing party, the resident or residents in each case, by more than $30,000. If the residents were successful, there would be no possession order and they would be entitled to remain in their dwellings on the sites for some longer period. If they were unsuccessful, they would be required to vacate the site and either remove their dwelling or leave their dwelling and, if they wished, receive the value of the dwelling. Neither of these possible results would change the wealth of any appealing party by more than $30,000.
17. In so far as it could be argued that, if successful, these grounds would lead to the residents regaining their rights of possession, there was no evidence that such rights had a value of more than $30,000. The only potentially relevant evidence concerned the value of what were referred to, in the substantive decision on appeal, as the paragraph 35, or [35], factors. Since the [35] factors included, in summary, the right of quiet enjoyment, rights of alienation and the protections on defeasibility afforded by Pt 12 of the Residential Parks Act for each relevant site, it might be argued that the value of these [35] factors should be seen as equivalent to the value of the right of possession. Even if this argument were accepted, it does not assist the owner because the only evidence was that these [35] factors were valued at $10,000, $15,000 or $20,000 for each of the sites (see Allen v TriCare (Hastings) Ltd [2016] NSWCATAP 216 at [214]). Thus, in each case, the amount in dispute would be less than $30,000. If the value of the [35] factors is not equivalent to the value of the rights of possession, there is no evidence as to the value of those rights. Thus, we could not conclude that the value of the right of possession in any of the appeals was greater than $30,000.
18. For these reasons, we do not accept that any of grounds 1, 2, 3, 4, 6 and 7 gave rise to an amount in dispute in any of the appeals of more than $30,000.
19. Although ground 8 was formulated in terms of the "termination date" for Mr Tucker's tenancy, in substance it concerned the date by which Mr Tucker should be required to give possession of his site. For substantially the same reasons given in relation to grounds 1, 2, 3, 4, 6 and 7, this ground did not have the consequence that the amount in dispute in Mr Tucker's appeal was more than $30,000.
20. Grounds 9 and 10 concerned the applicability of transitional provisions in the Land Lease Communities Act. As we noted in relation to grounds 9 and 10 at [332] of the substantive decision: "… the residents' appeal under grounds 9 and 10 does not turn upon the amount of compensation to which they might be entitled under s 141 [of the Land Lease Communities Act]. Rather the issue is what impact the fact that compensation should be determined, in their submission, under the Land Lease Communities Act has upon the decision of the Tribunal below in relation to the termination and possession orders."
21. As the residents submitted, the only claims made in the proceedings at first instance concerned termination and possession orders. The residents did not, in the proceedings before the Tribunal below, seek compensation orders. Similarly, on appeal, no orders for compensation were sought. Grounds 9 and 10 concerned whether the Tribunal at first instance could make the termination and possession orders that it did, in the light of the transitional provisions. The issues raised by those grounds did not, in the circumstances of the present appeals, give rise to the amount in dispute in any of the appeals being more than $30,000.
22. Thus, we are of the view that in each of the appeals we cannot conclude that the amount in dispute was more than $30,000.

Conclusion on r 38(2)(b)

1. Consequently, r 38(2)(b) does not apply to any of these appeals and we cannot award costs in the absence of special circumstances, as referred to in s 60(2) of the NCAT Act.

Can costs be awarded under s 60(2) of the NCAT Act?

1. Section 60 of the NCAT Act states the general proposition in subs (1) that each party to proceedings in the Tribunal is to pay the party's own costs. Section 60(2) modifies this by permitting the Tribunal to award costs but "only if it is satisfied that there are special circumstances warranting an award of costs".
2. By the letter of 1 November 2016, which has been set out in full above, the Appeal Panel requested the parties to make submissions in each appeal, on the assumption that r 38(2)(b) did not apply. In particular, submissions were sought on each appeal as to whether the Appeal Panel could be satisfied that there were "special circumstances warranting an award of costs" and on what basis, if any.
3. The owner's submissions filed on 7 November 2016 only dealt with the question of special circumstances in respect of the appeals of Mr and Mrs Byng, AP16/24875, concerning site 54. At par 15 of those submissions, it is stated: "With respect to the proceedings relating to Site 54, it is submitted that special circumstances exist to warrant an order for costs against, namely, that at all times the applications have been heard concurrently, as one matter, and Kevin Byng and Lorraine Byng have, at all times, been parties to the matter."
4. The owner's submission did not identify any special circumstances for any of the other appeals. Rather, in respect of those appeals, the owner relied upon the submissions (a) that the separate appeals all formed part of one "proceedings" for the purposes of r 38(2)(b) and (b) that the amount in dispute was more than $30,000 by reference to the valuations of the dwellings referred to in order 3 made by the Tribunal below, taken together or (c) that, alternatively, if each of the appeals was a separate set of proceedings the amount in dispute was greater than $30,000 by reference to the order 3 valuations, except for the Byngs' appeal. We have dealt with those submissions above in relation to r 38(2)(b) and concluded that they should be rejected.
5. Accordingly, the Byngs' appeal, AP16/24875, is the only appeal in which it is submitted there are special circumstances warranting an award of costs, namely, the fact that all the applications were heard concurrently.
6. "[S]pecial circumstances" for the purposes of s 60(2), are those which are out of the ordinary but they do not have to be extraordinary or exceptional: see the Appeal Panel in CPD Holdings Pty Ltd v Baguley [2016] NSWCATAP 160 at [6]; citing the Court of Appeal in Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [60] which concerned the same expression in the previous legislation governing the (then) Administrative Decisions Tribunal. In addition, s 60(3) gives a non-exhaustive list of matters that the Tribunal may take into account when determining whether there are special circumstances. The matters in s 60(3) are: "(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant."
7. The fact that the proceedings at first instance, or even on appeal, were heard concurrently does not fall within any of the matters listed in (a) to (f) of s 60(3) matters. Nor could it legitimately be said that having a joint or concurrent hearing of a number of proceedings, such as the present, that concern substantially similar issues arising out of common or related facts, is something out of the ordinary. It is a common occurrence in the Tribunal.
8. For these reasons, we do not accept that in AP16/24875 there are special circumstances, which would enliven the power to award costs in those proceedings.
9. It also follows from this that, even if the owner submitted that the fact of concurrent hearing of all the appeals amounted to special circumstances in each of the appeals, we would reject this submission.
10. Thus, we do not accept the submission that there are special circumstances which would permit us to award costs in respect of any of the appeals, under s 60(2) of the NCAT Act.

Conclusion

1. For all of these reasons, we are of the view that no costs order in favour of the owner should be made in any of the appeals. Therefore, the order of the Appeal Panel is, in each appeal, that the application for costs of the appeal is dismissed.

Endnote

1. This reasoning is applicable, despite the Tribunal at first instance determining the proceedings under the transitional provisions in cl 7 of Sch 1 to the NCAT Act. In Chief Commissioner of State Revenue v Fitzpatrick Investments Pty Limited [2016] NSWCATAP 9, the Appeal Panel held at [18] that, when exercising functions under cl 7 of Sch 1, the Tribunal could apply the costs provisions of the NCAT Act and Rules, including both s 60 and r 38 as applicable, or the costs provisions of the abolished tribunal. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 February 2017