Avirame v The Owners-Strata Plan No 863852

1. The appellant's Notice of Appeal was filed on 1 November 2024, within the required time under the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules), being 28 days: see r 35(4)(c) of the NCAT Rules.
2. The appellant's first ground of appeal as stated in the Notice of Appeal, refers to an error on a question of law arising in the exercise of the Tribunal's discretion as to costs of the first instance proceeding. Such error is said to be of the type described in House v The King (1936) 55 CLR 499 (House v The King), in that on the appellant's case, the result embodied in the costs' order made on 4 October 2024 is unreasonable or plainly unjust (Ground 1).
3. The second ground of appeal as stated in the Notice of Appeal is that the costs' decision was a substantial miscarriage of justice in that it was not fair and equitable (Ground 2). It is a ground for which the appellant seeks leave to appeal.
4. On 29 November 2024, the appellant filed other written material comprising the following documents:

(1) The Affidavit of the appellant Sophia Avirame, dated 8 November 2024 with attached annexures, and

(2) Written submissions.

Second Respondent's materials before the Appeal Panel

1. The second respondent filed a Reply to Appeal on 13 November 2024, within the required time under NCAT Rules, being 14 days (r 26(5)(b) of the NCAT Rules).
2. The second respondent's Reply to Appeal supports the Tribunal's Reasons for Decision in respect of the costs' order of 4 October 2024 and seeks that the appellant's appeal be dismissed.
3. Pursuant to the Appeal Panel's directions, the second respondent filed and served, on 18 December 2024, the following documents:

(1) A copy of Westside's written submissions for the Interim Orders Application dated 19 September 2024, and

(2) A copy of the orders of the Tribunal dated 4 October 2024,

(3) A copy of the letter, dated 27 September 2024, from the Westside to the applicant (i.e., the appellant) in relation to the Interim Orders Application,

(4) Westside's written submissions for the appeal.

1. The basis upon which appeals from decisions of the Tribunal may be brought are identified in s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), which states that an appeal may be made 'as of right on any question of law, or with leave of the Appeal Panel, on any other grounds' (s 80(2)(b) of the NCAT Act).

1. The meaning of a "question of law" has recently been considered by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Cusumano) and in Narraport Woollahra Holdings Pty Ltd v Ice Box Liquor Pty Ltd [2024] NSWCATAP 240. The principles enunciated by the Appeal panel in those authorities include the following:

(a) A question of law means a pure question of law,

(b) A mixed question of fact and law is not a pure question of law,

(c) A question of law must be articulated with precision, as (as absent leave to appeal) it is the subject matter of the appeal,

(d) A question of law must be discernible on the face of the ground of appeal,

(e) A question of law does not depend upon disputed facts,

(f) A question of law must be capable of being stated and considered from the facts to which it may be connected in a given case

1. Examples of questions of law include the matters set out in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13] and Cusumano _a_t [32]. However, the categories of question of law are not closed. As was stated at Cusumano at [37]-[39]:

"What constitutes a question of law is vexed and context dependent in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33(4)], citing Thomas and Naaz [2023] NSWCA 40 at [52] and Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186 at 194; [1968] HCA 51.

For instance, a ground of appeal that raises the question whether there were adequate reasons may constitute an attack on the merits which would not raise a pure question of law. On the other hand, it may be a contention that the decision is unreasonable in the requisite sense or that the Tribunal failed to exercise the jurisdiction, which would likely raise a question of law: see the exposition of this issue in Wollondilly at [28]-[32]. Care must in any event be taken. As has been clarified by amendment to the NCAT Act since Prendergast was decided, the Tribunal is not required to give reasons for all decisions it makes: NCAT Act, s 62(2A; see too: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [53]-[54], [109]-[114].

Therefore, discernment and care must be taken to ensure the grounds relied upon by the appellant, properly understood, raise questions of law and arise in the proceedings; or whether leave is required."

1. Costs' decisions fall into the category of discretionary decisions and therefore the appellant must establish an error of the type described in House v The King, namely that:

(1) The Tribunal made an error of legal principle,

(2) The Tribunal made a material error of fact,

(3) The Tribunal took into account some irrelevant matter,

(4) The Tribunal failed to take into account, or gave insufficient weight to, some relevant matter, or

(5) If a specific error is not shown whether the result embodied in the Tribunal's order unreasonable or plainly unjust.

1. An Appeal Panel discussed the "constrained" or "deferential" standard of appellate review that applies in an appeal of this nature (Roberts v The Owners - Strata Plan No 4393 [ 2023] NSWCATAP 119 [54] - [56]).
2. It is not enough that an Appeal Panel might conclude that it would have exercised the discretion to award costs differently if the discretion had been conferred on it in the first instance because the question involved (being costs) lends itself to differences of opinion which, within a given range, are legitimate and reasonable answers to the question posed.
3. Further, because costs decisions fall within the category of matters of practice and procedure there is the "added restraint" and "particular caution" which an Appeal Panel should exercise in reviewing such a decision (McInnes v Rheem Australia Pty Limited [2021] NSWCA 89).

1. Clause 12 of Sch 4 of the NCAT Act provides that, the Appeal Panel may grant leave to appeal a decision from the Tribunal's Consumer and Commercial Division pursuant to section 80(2)(b) of the NCAT Act, only if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because:

(1) the decision of the Tribunal under appeal was not fair and equitable; or

(2) the decision of the Tribunal under appeal was against the weight of evidence; or

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

1. The Appeal Panel considered the meaning of a substantial miscarriage of justice for the purposes of clause 12 of Sch 4 of the NCAT Act in Collins v Urban [2014] NSWCATAP 17 (Collins v Urban) at [76] stating that a substantial miscarriage of justice may have been suffered:

... where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.

1. The principles to be applied by an Appeal Panel in determining whether leave to appeal should be granted are well settled. In Collins v Urban, the Appeal Panel concluded at [84] that:

(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(2) Ordinarily it is appropriate to grant leave to appeal, only in matters that involve:

(a) Issues of principle; or

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; or

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

1. The appellant submitted that the Tribunal erred in the exercise of its costs' discretion by making a decision that was unreasonable or plainly unjust. The appellant relied upon these facts and circumstances:

(1) that the appellant was unrepresented for the proceeding at first instance,

(2) that no decision had been made to grant leave to the respondent (whether the OC, or the OC's managing agent, Westside) to be legally represented, and in fact, no order granting leave for the respondent to be legally represented was made,

(3) that it is not unusual for the names of a party to be amended at the first return of an application, especially where self-represented litigants are involved in complex strata matters,

(4) The appellant did not have sufficient time to seek legal advice in respect of the letter dated 27 September 2024, as this letter was received late on a Friday with the scheduled hearing for the Interim Orders Application on the following week.

1. The appellant submitted that the above facts and circumstances, ought to have outweighed the evidence of the respondent's legal representative in their letter dated 27 September 2024. Such letter had indicated that the application had no basis, was against the wrong respondent and was out of time, and as such, any failure to withdraw the application, would result in the respondent seeking an order for costs.

1. The appellant submitted that the costs' decision was not fair and equitable, in that the Tribunal had preferred the respondent's position on costs over the facts and circumstances as put in the first ground of appeal_._

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.

1. In Choi v University of Technology Sydney [2020] NSWCATAP 18 at [41], the appeal panel clarified that s60(1) of the NCAT Act, that parties to proceedings in the Tribunal are to pay their own costs, was:

"... designed to promote access to justice generally and to minimise the overall level of costs in tribunal proceedings as far as is practicable."

1. Section 60(2) of the NCAT says that the Tribunal may only award costs if the Tribunal is satisfied that there are special circumstances warranting an award of costs.
2. In CEU v University of Technology Sydney [2017] NSWCATAD 280 stated, in relation to matters before the Tribunal, at [4]:

"As the section makes plain, costs in the Tribunal do not follow the event. To justify an order for costs, an applicant must first satisfy the Tribunal that there are 'special circumstances' warranting it. To establish special circumstances, 'it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional': Gaynor v Burns [2015] NSWCATAP 150 (overturned on different grounds in Burns v Corbett; Gaynor v Burns [2017] NSWCA 3, but remaining a useful guide to the section); Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]."

1. The Tribunal must first be satisfied there are special circumstance when considering a costs application. If special circumstances are found, the Tribunal must then determine whether to exercise discretion in finding the special circumstances 'warrant' an award of costs. This was confirmed by the appeal panel in The Owners - Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 at [13], stating:

"The exercise of the discretion requires the Tribunal "to weigh whether those circumstances are sufficient to amount to 'special' circumstances that justify departing from the general rule that each party bear their own costs": BPU v New South Wales Trustee and Guardian (Costs) [2016] NSWCATAP 87 at [9]; Obieta v Australian College of Professionals Pty Ltd (2014) NSWCATAP 38 at [81]; Khalafv Commissioner of Police [2019] NSWCATOD 178 at [29]; Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 at [35]."

1. The appeal panel considered the exercise of discretion in awarding costs in eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48], stating:

"the discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. Each situation must, of course, be assessed on a case by case basis to see whether or not special circumstances exist so as to warrant the award of costs."

1. The Tribunal indicated that the basis for a finding of special circumstances pursuant to section 60 of the NCAT Act were:

(1) The Owners Corporation (OC) had not been joined as a party, and therefore, the Tribunal does not have jurisdiction to make the two orders sought. In this sense, although the OC was joined as a party at the hearing of the Interim Orders Application, the claim for interim orders was misconceived, and

(2) The two orders sought as interim orders lacked urgency, as they did not demonstrate a risk of immediate harm, severe personal or financial hardship, or immediate risk of damage to their property, further indicating the claim was misconceived.

1. The Tribunal then considered whether to exercise its discretion in making a costs' order. The Tribunal found that, in light of the letter of 27 September 2024 indicating that the wrong respondent had been named and therefore the respondent would seek a costs order if the appellant proceeded with the claim, that a costs order should be made.
2. The strata scheme the subject of the proceeding is a multi-lot residential scheme, and the applicant (i.e., the appellant) had spoken on behalf of 26 self-represented litigants at the hearing of the Interim Orders Application. Further, the hearing of 4 October 2024 was the first listed hearing in the applicant's application.
3. While the applicant had indicated that the lot owners in support of the Interim Orders Application were unable to engage legal representation for advice in response to the letter of 27 September 2024 from the OC's strata managing agent prior to the hearing of 4 October 2024, this circumstance, in the appellant's submission, was not considered by the Tribunal.
4. The Tribunal clearly stated in the reasons that leave for legal representation was neither sought, nor granted, on behalf of the second respondent.
5. The application was amended, with the leave of the Tribunal, to reflect the correct parties at the hearing of the Interim Orders Application. The appellant submitted that this is not an unusual practice where self-represented litigants are involved in Strata matters.
6. On the other hand, Westside's legal representative submitted that his client had incurred costs in defending a claim that was misconceived, in that it named the wrong respondent (i.e., Westside, not the OC). The second respondent submitted that it had clearly identified this position to the applicant in the letter dated 27 September 2024. The respondent further submitted that the absence of a formal order granting leave for legal representation does not equate, automatically, with an outcome of there being no order as to costs.
7. Having considered the above submissions, we are not persuaded that 'special circumstances' within s 60(2) of the NCAT Act have been made out. Further, even if 'special circumstances' had been made out, we are not persuaded that the costs' discretion should be exercised to award costs in this matter.
8. In our view, there was an error in the House v The King sense because the Tribunal did not take into account material considerations to which the appellant has referred in its submissions, and further, that the exercise of the costs' discretion in this instance led to an outcome which is unreasonable or plainly unjust in the circumstances

1. Even if we had not found an error on a question of law in accordance with Ground 1 of the appeal, we determine that Ground 2 of the appeal is made out and that leave to appeal should be granted.
2. In our view, the decision of the Tribunal was not fair and equitable and there has been a substantial miscarriage of justice that satisfies cl 12 of sch 4 of the NCAT Act. Because we have found the Tribunal should have considered the facts and circumstances as referred to in Ground 1, we determine that there is a "significant possibility" or "a chance which is fairly open" that the Tribunal would not have ordered the appellant to pay for Westside's costs of the Interim Orders Application had the Tribunal turned its mind to such facts and circumstances.
3. Moreover, in the exercise of the costs' discretion in those circumstances, we find that the error that was central to the Tribunal's decision is plain and readily apparent and not merely peripheral, so that it would be unjust for the Tribunal's finding on costs to stand. Accordingly, we grant leave to appeal.

1. Section 81 of the NCAT Act provides as follows:

(1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following -

(a) the appeal to be allowed or dismissed,

(b) the decision under appeal to be confirmed, affirmed or varied,

(c) the decision under appeal to be quashed or set aside,

(d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it,

(e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel.

(2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance."

1. Considering the guiding principle in s 36 and the objective in subsection 3(d) of the NCAT Act, it is appropriate to set aside the costs order and determine the question of costs at first instance. To do otherwise would require the parties to return to the Tribunal to argue a costs order. There is no indication from either party in the papers on which this appeal is being determined as to further evidence which, if tendered, would make a sufficient difference to justify the additional time and cost of having the appeal remitted to the Tribunal.
2. Accordingly, having found an error in the House v The King sense (Ground 1), and having also granted leave to appeal because of a substantial miscarriage of justice within the meaning of cl 12 of sch 4 of the NCAT Act (Ground 2), it is appropriate that the appeal panel exercises its own discretion in substitution for that of the Tribunal at first instance..

1. For the foregoing reasons, we have determined that the appeal should be allowed and that the appropriate costs' order is: in substitution of the Tribunal's costs' order of 4 October 2024, that each party is to pay their own costs of the proceeding at first instance. The Appeal Panel's orders are:

(1) Westside Management Pty Ltd is joined as a respondent to the appeal proceeding.

(2) Appeal Allowed.

(3) In substitution of Order 2 made by the Tribunal on 4 October 2024, order that each party bear their own costs of the Interim Orders Application proceeding constituted by case no 2024/00328189.

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.