Atab v The Owners – Strata Plan No 8108

Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333
Choi v University of Technology Sydney [2020] NSWCATAP 18
Evans v The Owners – Strata Plan [2025] NSWCATAP 159
House v The King (1936) 55 CLR 499
Rao Nallamouthou v Owners of Strata Plan No 39988 (No 2) 2025 NSWCATCD 21
Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25
Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204
Zhang v Chehade [2021] NSWCATCD 105

Texts Cited: None

Category: Principal judgment

Parties: Monique Atab (Appellant)
The Owners – Strata Plan No 8108 (Respondent)

Representation: Self-represented (Appellant)
Counsel:
Ms B Anderson (Respondent)
Solicitors:
Kerin Benson Laywers (Respondent)

File Number(s): 2025/00483297

Publication restriction: None

REASONS FOR DECISION

1. This is an internal appeal filed by the Appellant pursuant to s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) *(*the NCAT Act).

2. The appeal concerns a costs decision dated 10 November 2025 of the Consumer and Commercial Division of the Tribunal (the Costs Decision) in which the appellant was ordered to pay 50% of the costs of the respondent from 21 August 2024 on an ordinary basis as assessed or agreed (the Costs Order).

3. The appellant was a lot owner in a strata scheme (the strata scheme). The strata scheme is located in NSW. The respondent is the owners corporation of the strata scheme.

Notice of Appeal filed late

4. The appeal was filed on 12 December 2025. Consequently, the appeal was not filed within the 28-day time period prescribed by Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules). The respondent opposed an extension of time for the filing of the appeal.

5. The appellant’s Notice of Appeal records that the appellant received the Primary Decision on 13 November 2025. The appellant also recorded that a “medical certificate was attached if required” although that document was not in fact attached.

6. The respondent opposed an extension of time for the filing of the Notice of Appeal. However, the respondent did not identify any prejudice due to the appellant’s short delay. Rather, the respondent contended that the Appeal Panel should not extend time because of the weak prospects of success of the appeal. Consequently, the respondent’s opposition will entail the Appeal Panel assessing the grounds of appeal in any event.

7. Having regard to the very limited extension of time sought by the appellant, and the absence of any prejudice to the respondent by reason of the delay, we are satisfied that it is appropriate to extend the time for the filing of the Notice of Appeal to 12 December 2025.

Background

8. The appellant commenced the substantive proceedings in the Tribunal and sought damages from the respondent of $81,004.45: Costs Decision, [6].

9. The appellant’s claims against the respondent included a monetary payment to replace kitchen fixtures, waterproofing of the bathroom and the appointment of a strata managing agent pursuant to s 237 of the SSMA.

10. On 27 June 2024 the respondent made an offer to the appellant to settle the proceedings by payment to the appellant of $12,000.00. The offer was made on a without prejudice basis save as to costs and expressly referred to the principles of Calderbank v Calderbank [1975] 3 All ER 333 (Calderbank). The offer contended that, due to the age of the strata scheme, the border between lot property and common property was determined by the centreline rule in accordance with s 4(2) of the Conveyancing (Strata Titles) Act 1961 (NSW) and that as a consequence the waterproofing issues of which the appellant complained were likely to be considered lot property rather than common property. The appellant did not accept the offer.

11. On 9 July 2024 the respondent made another offer to the appellant to settle the proceedings, again by payment to the appellant of $12,000.00. This offer was also made on a without prejudice save as to costs basis and referred to Calderbank principles. The offer contended that there was no evidence that any lot damage “has anything to do with common property” or that the respondent breached its duty to repair and maintain the common property. The 9 July 2024 offer was also not accepted by the appellant.

12. The Tribunal heard the substantive dispute on 3 February 2025.

13. On 8 July 2025 the Tribunal published its reasons for decision in the substantive dispute (the Substantive Decision) and made the following orders:

“1. The Owners Corporation reinstate the existing shower screen within 2 weeks of these orders.

2. In the alternative to (2) (sic), the Owners Corporation contribute and pay the Applicant the amount of $500 for a new shower screen including installation costs.

3. The Owners Corporation pay to the Applicant the amount of $1,126.25 pursuant to s. 106(5) of the Strata Scheme Management Act, 2015 within 2 weeks of these orders.

4. The Proceedings are otherwise dismissed.

5. Any party that wishes to make an application for costs do so within 21 days of these orders.”

14. Relevant to the issue of costs, the Substantive Decision concluded that “it cannot be said” that the appellant had been successful:

“[30] The Owners Corporation in its written submissions before the hearing attempted to quantify the quantum of claims by the applicant to be over $90,000. A significant number of these claims were abandoned by the Applicant in her submissions after the hearing. The monetary amount of the compensation that the Tribunal is to order to be paid to the Applicant falls well short of this amount. It therefore cannot be said that the Applicant was successful and I will not make the notation that [is] usually made.”

15. On 29 July 2025 the respondent filed submissions seeking a costs order in its favour and relied by way of evidence on a significant body of correspondence between the parties to demonstrate the extent of interactions between the appellant and the respondent’s solicitors and the nature and content of those interactions. The appellant filed submissions in opposition.

16. The Tribunal dispensed with a hearing pursuant to s 50(2) of the NCAT Act and the Costs Decision was published on 10 November 2025.

The Costs Decision

17. The Tribunal summarised the respondent’s submissions in support of a costs order at [5] of the Costs Decision:

(a) Ms Atab conducted the proceedings in a manner which unreasonably prolonged the matter and also caused the OC to incur significant and unnecessary costs;

(b) Ms Atab conducted the proceedings in a manner which, despite clear and unambiguous requests from the Owners Corporation’s lawyers, caused the Owners Corporation to incur significant and unnecessary costs;

(c) Ms Atab unreasonably refused settlement offers from the OC.

18. The Tribunal summarised the appellant’s submissions in opposition to a costs order, noted the appellant’s observation that she was not legally trained or experienced and her submission that she was partially successful. The Tribunal noted at [9] that the appellant submitted that:

(a) the appellant conducted the proceedings as best as she was able to do so in the circumstances;

(b) the appellant was not required to conduct proceedings in a manner requested by the respondent;

() at the time of the offers being made, the appellant considered the offers and did not think that it would be in her interests to accept the offers.

19. In determining the respondent’s application for costs, the Tribunal referred to the importance of sub-ss. 36(1) and s 36(3) of the NCAT Act. Sub-section 36(1) provides that the guiding principle for the NCAT Act, procedural rules and their application to proceedings in the Tribunal is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Sub-section 36(3) places an obligation on a party to proceedings and Australian legal practitioners representing a party to proceedings to co-operate with the Tribunal to give effect to the guiding principle in sub-s. 36(1).

20. The Tribunal correctly identified that since the amount claimed by the appellant was more than $30,000.00 and the proceedings were in the Consumer and Commercial Division the question of costs was to be determined in accordance with rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules): Costs Decision, [81]. The Tribunal observed that the appellant was “moderately successful in obtaining some relief” and the respondent was “moderately successful in resisting orders for substantial compensation”: Costs Decision, [82].

21. The Tribunal noted the appellant’s submission that the respondent’s position did not give due regard to the appropriate balance between an applicant’s right to air legitimate grievances and their duty to exercise that right responsibly, as discussed in Cho**i v University of Technology Sydney [2020] NSWCATAP 18, Zhang v Chehade [2021] NSWCATCD 105 and Evans v The Owners – Strata Plan [2025] NSWCATAP 159. Those cases include observations that some latitude should be accorded to self-represented parties.

22. In relation to the respondent’s offers to settle the proceedings by payment to the appellant of $12,000.00, the Tribunal again considered the applicable principles. These principles included the observation of the Deputy President in Rao Nallamouthou v Owners of Strata Plan No 39988 (No 2) 2025 NSWCATCD 21 to the effect that the failure of a legally represented owners corporation to write to an applicant lot owner pointing out the weaknesses of various claims and providing an opportunity to withdraw those claims without facing a costs penalty is relevant to the Tribunal’s discretion on the question of costs: Costs Decision, [85]. The Tribunal observed at [86] that in the Calderbank offers the respondent had “done what the Deputy President suggested should have been done”. The Tribunal concluded that had the appellant accepted the offer “then the proceedings would have been disposed of fairly expeditiously”: Costs Decision, [86].

23. Finally, the Tribunal recorded the following findings:

“[89] On reviewing the interaction between Ms Atab and the OC I find that she conducted the proceedings in an adversarial manner. While this is in the nature of litigation, I also find that she was in some of her responses antagonistic. She was uncooperative in setting out her material which was not submitted in an orderly and comprehensive manner.

[90] Consequently, I agree with the OC that while it may be accepted that certain isolated conduct of Ms Atab may not rise to the level that costs be awarded against her, as a whole and collectively, her conduct was wilful, repeated, aggravating and obstructive. That conduct collectively caused the disadvantages to the OC and caused it to incur unnecessary costs and prolong the time for the proceedings to be heard.

…

[92] In exercising my discretion I am also cognisant that during the proceedings Ms Atab complained of the overbearing conduct of the solicitors for the OC. There was obviously conflict between Ms Atab and the solicitors. This of course does not excuse Ms Atab of breaching the guiding principles of the Tribunal to facilitate a quick and costs effective resolution of the dispute. Her conduct of delay and obstructive (sic) unnecessarily prolonged the proceedings.

24. Having observed in the Substantive Decision that the appellant was not the successful party, the Tribunal also made a finding in the Costs Decision that the OC was not a successful party: Costs Decision, [95].

25. The Costs Order was limited to 50% of the respondent’s costs and limited the time period to costs from 21 August 2024, about 6 weeks after the 9 July 2024 Calderbank offer.

The relevant principles applicable to the appeal

26. The appeal is brought pursuant to s 80 of the NCAT Act. Section 80(2) provides:

"Any internal appeal may be made:

(a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and

(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds."

27. The meaning of a "question of law" was discussed in detail by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Cusumano) at [25]-[40]. A pure question of law does not depend on the facts found. A question of law is distinct from a mixed question of fact and law, for which leave to appeal is required. The categories of question of law are not closed. As was stated at Cusumano at [25(3)-(11)]:

“(3) A question of law means a pure question of law: Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11].

(4) A ‘pure question of law’ and ‘a question of law alone’, and other variants, are synonyms: Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 at [12], [14], summarising Orr v Cobar Management Pty Ltd [2020] NSWCCA 220.

(5) A ‘pure question of law’ does not depend on facts not found, per Bathurst CJ and Bell P stating in Orr v Cobar at [48] and [109]:

“[48] As was noted in Bass v Permanent Trustee Company Limited (1999) 198 CLR 334 at 358; [1999] HCA 9 at [52], some questions of law can be decided without any reference to the facts, or may proceed by reference to assumed facts. These are sometimes described as ‘pure questions of law’. This was the terminology used, for example, by Leeming and White JJA in strictly confining a grant of leave to appeal in Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2020] NSWCA 62 at [11]; see also Medical Council of New South Wales v Lee [2017] NSWCA 282 at [77]; and Violi v Commonwealth Bank of Australia [2015] NSWCA 152 at [66] and [125].

…

[109] Those questions of law should be, in our opinion, what are sometimes described as ‘pure questions of law’. They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts. The construction accords with the cases we have referred to at [48] and [70] above.’

(6) A party contending a ‘question of law alone’ was wrongly decided, must identify the question in abstract terms. In R v PL [2009] NSWCCA 256 at [27], Spigelman CJ stated that a contention that a presiding judicial officer erred may involve a question of law alone if a stand‑alone legal proposition can be identified which was a ‘distinct and separate step in the reasoning process.’ In Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 (Bimson, Roads & Maritime), Beech‑Jones J at [40], quoted Gibbs CJ in Williams v R (1986) 161 CLR 278; [1986] HCA 88 at p 287:

‘... there is ‘a question of law alone’ if the question of law can be stated and considered separately from the facts which it may be connected in a given case.’

(7) The question of law must, self‑evidently, be a question of law and not depend on the answer. For example, a question which commences with, “whether it was open to find on the facts fully found” would raise a question of law if the answer was no; but not, if the answer was yes: Orr v Cobar Management Pty Limited [2020] NSWCCA 220 at [58]–[59] (Orr v Cobar). Accordingly, such a question does not raise a pure question of law.

(8) A mixed question of fact and law is not a question of law: Bimson, Roads & Maritime at [39]. In Orr v Cobar Management, Bathurst CJ and Bell P said at [60]:

‘It is well established that a question of mixed fact and law is to be differentiated from, and is not, a ‘question of law’. In Thomas v R, … Dixon J noted that a ‘mistake as to the existence of a compound event consisting of law and fact is in general one of fact and not a mistake of law’. Thomas was cited with approval in Iannella v French (1968) 119 CLR 84 at 114‑115; [1968] HCA 14; see also Williams v R (1986) 161 CLR 278 at 287 and 314; [1986] HCA 88; cf. Lavorato v R (2012) 82 NSWLR 568; [2012] NSWCCA 61 at [13].’

(9) There is a distinction between an error of law and a question of law. A question may disclose an error of law, but not raise a question of law: Kudrynski at [42]; Orr v Cobar at [52]–[54]. By way of example:

(a) The questions of whether facts as found necessarily fall within a statutory term or necessarily fall outside it, raise questions of law; whereas a question of whether it was open to find that the facts satisfied the statute may reveal an error of law but does not raise a question of law, because whether it was open may be a question of weight; and as identified above at [25(7)] is not “self‑evidently” a question of law, as it depends on the answer.

(b) The question of whether there is no evidence to support the finding raises a question of law; in contrast, a mere error in the fact‑finding process does not: as explained by Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (Azzopardi) at 156B–F.

(10) An appeal is ‘on’ any question of law: s 80(2) of the NCAT Act. The question of law must not be hypothetical or arid. Whilst the following cases were decided in a different context to the present, see Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 at [90]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353–354; [1990] HCA 33.

(11) An appeal is against orders and not reasons: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 at [34], Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 at [217], Kramer v Stone [2023] NSWCA 270 at [259]. Therefore, the question of law must be capable of affecting the orders the subject of the appeal.

28. In accordance with s 80(2)(b), where the grounds of appeal do not raise a question of law then leave of the Appeal Panel is required. Paragraph 12 of Schedule 4 to the NCAT Act deals with the grant of leave as follows:

“An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:

(a) the decision of the Tribunal under appeal was not fair and equitable, or

(b) the decision of the Tribunal under appeal was against the weight of evidence, or

(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).”

29. Decisions as to costs are discretionary. The Tribunal’s discretion must be exercised judicially.

30. In House v The King (1936) 55 CLR 499, [1936] HCA 40 (House v King) at 505 the High Court set out the applicable principles for determining whether there has been an error of law in the exercise of discretion. The High Court made the following observations as to what must be demonstrated to establish an error of law in the exercise of a discretion:

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges comprising the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." (emphasis added)

31. It follows from House v King that it is “not enough” to set aside an exercise of the Tribunal’s discretion on a question of costs that the Appeal Panel consider that had it been in the position of the Member it would have taken a different view. Rather, the party appealing the exercise of the Tribunal’s discretion must establish an error of the type discussed in House v King.

Consideration

32. We turn now to consider the appellant’s grounds of appeal.

Ground 1 - Incorrect application of section 60 of the NCAT Act

33. The first ground of appeal is that the Tribunal incorrectly applied section 60 of the NCAT Act. However, because the appellant sought relief in an amount exceeding $30,000.00 in the Consumer and Commercial Division, the question of costs fell to be determined under rule 38 of the NCAT Rules. Rule 38 provides as follows:

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.

34. Rule 38 displaces the provisions of s 60 of the NCAT Act in proceedings commenced in the Consumer and Commercial Division of the Tribunal: see Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25. There is no dispute that the proceedings were commenced in the Consumer and Commercial Division of the Tribunal. Accordingly, the requirement in s 60 for “special circumstances” to exist before an award for costs can be made did not apply to the Costs Decision.

35. We dismiss this ground.

Ground 2 – Excessive legal costs

36. The second ground of appeal is that the amount the respondent seeks by way of legal costs is excessive. This ground does not identify a question of law.

37. In any event, the question of the extent to which costs falling within the scope of the Costs Order are recoverable by the respondent is a matter for assessment, unless the parties agree. Since the Costs Order was not a gross sum costs order, the question of the quantum recoverable did not arise for consideration by the Member and was not relevant for the Costs Decision. Those matters arise subsequent to the Costs Decision, during the assessment process, to the extent it is undertaken.

38. We dismiss this ground.

Ground 3 – Appellant’s personal circumstances ignored

39. The third ground of appeal contends that the Tribunal did not take into account a number of personal circumstances of the appellant. This ground does not raise a question of law and requires leave.

40. A number of circumstances to which the appellant pointed were irrelevant to the question of costs. These include that the appellant was “refused Legal Aid”, “refused pro bono representation” and advocacy organisations had declined to assist her.

41. The appellant asserted that she suffered from long COVID and that this affected her conduct of proceedings. However, the appellant did not demonstrate to the Appeal Panel that evidence establishing these matters was provided to the Tribunal for the purposes of its Costs Decision. Furthermore, the appellant’s submissions to the Tribunal opposing the respondent’s application for costs did not raise these issues (see bundle filed by appellant 23 March 2026, pp. 22 – 25). The Tribunal did not err in failing to take into account in its Costs Decision matters which were not raised by the appellant in her submissions on the question of costs.

42. For the above reasons we do not consider that leave should be granted and this ground is dismissed.

Ground 4 – Not receiving communications from respondent.

43. The fourth ground of appeal asserts that the appellant was denied procedural fairness because she was sent materials by the respondent by email or did not receive materials, including “essential documents”.

44. The appellant’s complaints appear related to the conduct of the proceedings up to the hearing. In any event, the appellant did not identify material relevant to the Costs Decision falling within this category. Nor did the appellant raise this issue in her submissions before the Member in opposition to the respondent’s application for costs.

45. The fourth ground does not identify a question of law arising from the Costs Decision. Nor does it identify an error of fact or mixed fact and law in the Costs Decision. Finally, the relevance of the complaint to the Costs Decision has not been established.

46. We dismiss this ground.

Ground 5 – Strata Manager refused to answer questions

47. The fifth ground alleges procedural unfairness because the strata manager refused to answer any of the appellant’s questions at a strata meeting. This issue may have been relevant to the Substantive Decision, but this ground of appeal did not identify a connection with the Costs Decision. The issue formed no part of the reasoning in the Costs Decision and was not raised in the submissions made by the appellant in opposition to the respondent’s application for costs.

48. This ground of appeal does not raise a question of law. Nor does it identify an error of fact or mixed fact and law in the Costs Decision.

49. Accordingly we dismiss this ground.

Ground 6 – Incorrect findings about access

50. The sixth ground alleges that the Tribunal made incorrect findings as to access to the lot. This ground does not identify a question of law and requires leave of the Appeal Panel.

51. The appellant does not identify the Tribunal’s “incorrect” finding in the Costs Decision. The question of access to the lot was raised in the respondent’s submissions in support of a costs order, as recorded in [63(c)] of the Costs Decision. The Costs Decision did not make a specific finding on this issue. To the extent this matter is within the conduct the subject of the Tribunal’s findings at [89] and [90] there was sufficient material before the Member to support the conclusion that there were difficulties in obtaining access to the lot, including the correspondence between the parties relating to access.

52. We decline to grant leave to the appellant to raise this ground.

53. Accordingly, we dismiss this ground.

Ground 7 – Harassment, intimidation and inappropriate conduct ignored by Tribunal

54. The seventh ground asserts that the Tribunal failed to take into account a myriad of conduct undertaken by, or presumably on behalf of, the respondent. These complaints do not raise a question of law and reliance on them requires leave of the Appeal Panel.

55. First, the appellant refers to an alleged threat, “conveyed via the for-sale installer”, that the respondent would place a caveat on the appellant’s lot. This is not an error of law. Nor was it raised by the appellant in her submissions opposing the respondent’s costs application. Further, the appellant does not identify how that conduct was attributable to the respondent. Finally, we would observe that the appellant has not shown that the conduct is relevant to the question of costs.

56. Second, the appellant refers to comments from other lot owners. Again, these are not attributable to the respondent. Moreover, the appellant has not shown that the conduct is relevant to the question of costs.

57. Finally, the appellant refers to her multiple repair requests “contributing to the dispute and escalating”. The merits of the appellant’s complaints were ultimately determined by the Substantive Decision and the extent of both the appellant’s success was taken into account in the Costs Decision. There was no error of law in the manner in which the parties’ relative success informed the Tribunal’s exercise of discretion. To the extent that an error of mixed fact and law is raised, we do not grant leave for this ground to be raised because the merits of the dispute between the parties was determined by the Substantive Decision and the extent of the appellant’s success was expressly considered in the exercise of the Tribunal’s discretion in the Costs Decision.

58. Accordingly, we do not grant leave for this ground and dismiss this ground.

Ground 8 – Mischaracterisation of appellant’s conduct

59. The eighth ground refers to the appellant’s long COVID health condition, “exclusion from communications”, absence of legal support, “harassment and threats received” and “ignored repairs”. In substance, this ground repeats grounds 3 and 7 and for the same reasons we dismiss this ground.

Ground 9 – Failure to give adequate reasons

60. The ninth ground alleges a failure to give adequate reasons. The failure to give adequate reasons, if established, is an error of law.

61. The appellant alleges that the Tribunal failed to explain “why excessive expenditure was accepted”. This refers to the quantum of costs claimed by the respondent. The Costs Decision did not make any finding as to the quantum of recoverable costs. We repeat our observations above in relation to the second ground.

62. Next, the appellant alleges that the Tribunal ignored, without explanation, her vulnerability. We observe that the appellant did not raise in her costs submissions to the Member any special vulnerability. To the extent the appellant refers to her position as a self represented party, the Costs Decision took this into account. The Member referred to the principal authorities relating to the latitude to be afforded to a self represented party and to the importance of providing a proper opportunity to raise genuine grievances. However, the Member concluded that the appellant’s conduct went beyond that latitude. In this respect the Costs Decision includes the following findings:

“[89] On reviewing the interaction between Ms Atab and the OC I find that she conducted the proceedings in an adversarial manner. While this is in the nature of litigation, I also find that she was in some of her responses antagonistic. She was uncooperative in setting out her material which was not submitted in an orderly and comprehensive manner.

[90] Consequently, I agree with the OC that while it may be accepted that certain isolated conduct of Ms Atab may not rise to the level that costs be awarded against her, as a whole and collectively, her conduct was wilful, repeated, aggravating and obstructive. That conduct collectively caused the disadvantages to the OC and caused it to incur unnecessary costs and prolong the time for the proceedings to be heard.”

63. The Tribunal’s reasoning and findings at [89] and [90] adequately explain the conclusions reached by the Tribunal.

64. We also observe that the Tribunal had the benefit of conducting the substantive hearing. In addition, for the purposes of determining the respondent’s application for costs, the Tribunal had before it a large body of communications between the parties adduced by the respondent in support of its submissions as to the conduct of the proceedings by the appellant. Those communications exceeded 50 pages. The Tribunal’s findings at [89] and [90] were open to it on the evidence before it and we do not see an error of the type identified in House v King.

65. The appellant next contends that there was a failure to give adequate reasons because the Costs Decision fails to explain why harassment and exclusion from communications were irrelevant or not taken into account. These issues were dealt with above in ground four and ground seven. For the reasons discussed above, the appellant’s complaints do not demonstrate a failure to provide adequate reasons.

66. Finally, the appellant contends the Costs Decision does not show “how ‘special circumstances’ were satisfied”. This contention proceeds on the incorrect premise that the question of costs fell to be determined under s 60 of the NCAT Act rather than r 38 of the NCAT Rules.

67. For the above reasons, we dismiss this ground.

Ground 10 – Costs order manifestly unjust

68. The appellant’s final ground alleges that the costs order was punitive, disproportionate and not open on the evidence.

69. We observe that even though the relief granted to the appellant in the Substantive Decision was significantly less than the offers made by the respondent, the appellant was only ordered to pay the respondent 50% of its costs on the ordinary basis and only from a period of about six weeks after the last offer. The effect of the Costs Order is to provide the respondent with a partial indemnity for its actual costs. Consequently, the Costs Order cannot be characterised as punitive.

70. The appellant contends that the findings “were not reasonably open on the evidence”. The appellant has not demonstrated any findings in the Costs Decision which were not open to the Member on the evidence before the Tribunal. Having regard to the evidence of the communications adduced by the respondent for the purpose of the Costs Decision, we are satisfied that the findings made by the Member were open on the evidence before the Tribunal.

71. The final ground is dismissed.

Costs of the Appeal

72. During the hearing, the Appeal Panel invited the parties to indicate whether they wished to be heard on costs of the appeal. Both parties indicated they did not seek, or intend to seek, an order for costs of the appeal.

Orders

73. The Tribunal makes the following orders:

74. Extend to 12 December 2025 the time for filing the Notice of Appeal.

75. Dismiss the appeal.

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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