Angel's Paradise Wagga Pty Ltd ATF The APW Business Trust v Secretary, Department of Education [2025] NSWCATAD 212;

1. Under s 60 of the NCAT Act, the usual rule is that each party bears its own costs. However, a costs order can be made if "special circumstances" are established.
2. In determining whether there are special circumstances warranting an award of costs, s 60(3) provides that the Tribunal may have regard to:

(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.

1. Section 36(3) of the NCAT Act, provides that a party is under a duty to co-operate with the Tribunal to give effect to the guiding principle (to facilitate the just, quick and cheap resolution of the real issues in the proceedings) and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal.
2. The onus to satisfy the Tribunal that there are special circumstances warranting an award of costs lies with the applicant for the costs order: Styles v Wollondilly Shire Council [2017] NSWCATAP 108 at [5].
3. Special circumstances are those that are out of the ordinary, and they do not have to be extraordinary or exceptional: Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [60]. Even if satisfied that there are special circumstances, the Tribunal must further be satisfied that they are circumstances "warranting an award of costs": Youssef v NSW Legal Services Commissioner (Costs) [2020] NSWCATOD 115 at [108].

Should a costs order be made against the applicant?

1. The respondent submits that there are special circumstances which warrant the making of a costs order against the applicant on the basis that the stay application lacked utility and was misconceived. Furthermore, prior to withdrawing the stay application, the applicant failed to comply with the directions of the Tribunal, did nothing to prepare its own case and failed to comply with its obligations under s 36 (3) of the NCAT Act. The respondent argues that these actions by the applicant also amount to special circumstances.
2. The applicant submits that each party should bear their own costs as the applicant diligently prosecuted the stay application, the stay application was not misconceived and the applicant acted in a reasonable and timely manner in withdrawing the application.

1. Dealing first with the submission of the respondent that the stay application lacked utility, certain provisions in the National Law become relevant. As noted above, on 15 May 2025 the applicant applied to transfer the Wagga Service Approval to another provider. As I understand it, the Wagga Service Approval is the only service approval held by the applicant.
2. Under s 58 of the National Law an approved provider who holds a service approval may transfer the service approval to another approved provider. However, the effect of s 34(7) of the National Law is that, if an application to transfer is made, the service approval is suspended until the respondent determines the application.
3. Thus, the respondent submits that, even if the applicant had obtained a stay of the decision to cancel its provider approval, the Wagga Service Approval could not have been reinstated because it remains suspended pending determination of the transfer application. It is not suggested by either party that the Tribunal could have made any order that lifted the automatic suspension pending consideration of the transfer application. In these circumstances the respondent submits that the stay application lacked any utility and it was misconceived.
4. The respondent's solicitor, Rhys Carvosso, has provided an affidavit in these proceedings and states that he first raised the issue of utility with the applicant's solicitor, Meena Hanna, on the evening of 4 June 2025, shortly after the Crown Solicitor was instructed to act for the respondent. This is evidenced by an email in which Mr Carvosso also asked that he be provided with materials filed with the Tribunal in accordance with the orders made on 30 May 2025 which required the applicant to file and serve any submissions and evidence in support of the stay application by 4:00 pm on 4 June. Mr Hanna responded to the email the next day.
5. Mr Hanna indicated in his email that, further to telephone conversations between the parties, he proposed seeking an extension to the timetable set by the Tribunal that he be permitted to serve further material the next day, 6 June 2025. He also stated that he had suffered a catastrophic computer failure over the weekend which meant that his computer was unusable until 2 June 2025. Mr Hannah also stated that he would communicate with his client and confirm instructions about whether it wished to continue pressing the stay application or whether it sought an adjournment.
6. Mr Carvosso replied that the respondent did not agree to the proposed amendment to the timetable and reiterated its position that the application for a stay lacked utility.
7. Mr Hanna has also provided an affidavit in these proceedings. He states that the applicant did not withdraw the stay application on 10 June 2025 because of any view about the utility of the stay. Rather the withdrawal was because of "case management and costs".
8. Mr Hanna argues that he considers the stay application did have utility. His primary argument is that the applicant had an arguable case on the merits of the stay application. In those circumstances, if the applicant was successful on the merits of the stay application, it could have withdrawn the transfer application and the suspension would cease.
9. In this matter there was no determination on the merits of the stay application. That, however, is no bar to the Tribunal concluding that the stay application was misconceived: Re Minister For Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6; 186 CLR 622 at 624-625.
10. While Mr Hanna has provided no evidence from his client that the transfer application would have been withdrawn, I accept that this may have been a possibility and a withdrawal of that application would have meant the approval was not suspended for that reason. In those circumstances the application for a stay could not be said to lack utility for the reasons put forward by the respondent.

1. The other basis upon which the respondent submits a costs order should be made against the applicant concerns the applicant's conduct in relation to the stay application. The respondent states that the applicant failed to comply with the orders made by the Tribunal in relation to the stay application despite being requested by the respondent that it do so; that the applicant has not provided any explanation for its failure to comply; at no time, even though it foreshadowed an application for an extension to the timetable, did the applicant file any material; and, that the applicant failed to tell the respondent it was withdrawing the stay application until 30 minutes before the scheduled hearing.
2. The respondent states that the above matters should lead the Tribunal to conclude that the applicant conducted the stay application in a way that unnecessarily disadvantaged the respondent and caused it to incur legal costs. Furthermore, the respondent submits that the applicant's actions are inconsistent with its obligations under s 36(3) of the NCAT Act.
3. The application for a stay was lodged with the Tribunal on 29 May 2025. The orders which were made by the Tribunal on Friday, 30 May 2025 were that the applicant was to file any further submissions and material in relation to the stay application by 4:00 pm on the following Wednesday, 4 June 2015. The respondent was given until 10:00 am on Tuesday, 10 June 2025 to file its material, 9 June 2025 being a public holiday, and the stay application was listed for hearing at 2:00 pm on 10 June 2025.
4. Mr Hanna in his affidavit of 27 June 2025 states that he received the orders of the Tribunal by email on 30 May 2025. He states he is a sole practitioner and works from home on weekends. Mr Hanna has provided evidence that his home computer failed on the evening of 30 May 2025 and, despite attempts, was not operational, albeit with some residual problems, until Monday, 2 June 2025. Mr Hanna states that the issues with his computer impeded his ability to prepare documents. He also states that his office is about an hours' drive from his home.
5. Mr Hanna states he telephoned Mr Carvosso on 4 June 2025 to inquire whether he had carriage of these proceedings for the respondent, there having been previous proceedings between the parties in which Mr Carvosso represented the respondent. Mr Carvosso stated he did not have carriage of the matter and was unaware if his office had been instructed. Mr Hanna states that the Tribunal Registry advised him that afternoon that it had no record of any lawyers acting for the respondent. He was, however, advised by Mr Carvosso that evening that he had been instructed to act for the respondent.
6. The affidavits of Mr Hanna and Mr Carvosso refer to telephone conversations and emails between them on 5 June 2025 in which Mr Carvosso asked Mr Hanna to serve materials in relation to the stay application on him by email and, in turn, Mr Hanna foreshadowed an extension to the timetable which had been set on 30 May 2025. As noted above, Mr Hanna proposed that the applicant file and serve its material by 6 June 2025 and stated he was seeking instructions from the applicant about whether it wished to continue with the stay application or whether it proposed adjourning the stay hearing. The respondent did not agree to an extension of the timetable.
7. There was no further contact between the parties until 10 June 2025, 7 and 8 June 2025 being a weekend and 9 June 2025 being a public holiday. The respondent served its materials on Mr Hanna shortly before 10:00 am on 10 June 2025 and, as set out above, later in the day Mr Hanna advised Mr Carvosso that the stay application was withdrawn.
8. The applicant submits that, given the compressed timetable set by the Tribunal for the hearing of the stay application and the issues which its legal representative had with his computer along with the fact that the respondent's representative was not engaged until late on 4 June 2025, it did not have sufficient time to obtain legal advice about the utility argument raised by the respondent or to withdraw the stay application on another basis. The applicant states it did not prolong the stay proceedings and was diligent in prosecuting the stay application.
9. It is true that the timetable set by the Tribunal was compressed, although that is not unusual in stay applications. I accept that Mr Hanna's computer difficulties impeded his ability to meet the timetable. It is possible, as the respondent suggests, that Mr Hanna could have driven to his office to use the computer there but that is not a matter put to Mr Hanna and it is not known whether that was a feasible option over the long weekend.
10. It is apparent that the respondent filed no material with the Tribunal by the due date of 4 June 2025 (or at all). Although Mr Hanna sought the respondent's consent to an extension or adjournment, no approach was made directly to the Tribunal by him. By the same token, the respondent did not alert the Tribunal to the applicant's non-compliance.
11. Given the compressed timeframes, Mr Hanna's difficulties, the public holiday on 9 June 2025 and his attempt to seek an extension, I do not consider that the applicant's conduct has been so out of the ordinary or grossly unreasonable so as to attract the exercise of the Tribunal's power to award costs: see Cripps and Another v G & M Dawson Pty Ltd [2006] NSWCA 81 at [55].
12. Overall, I am not satisfied that there are special circumstances warranting a departure from the general rule that each party bear its own costs.

(1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) the Tribunal dispenses with a hearing on the question of costs.

(2) No order as to costs, with each party to bear its own costs.

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.