Bien v Superior Strata Pty Ltd

Texts Cited: Not applicable

Category: Costs

Parties: Cao Tam Bien (Appellant)
Superior Strata Pty Ltd (Respondent)

Representation: Solicitors:
Appellant (self-represented)
Bannermans Lawyers (Respondent)

File Number(s): 2025/00406265

Publication restriction: Nil

REASONS FOR DECISION

Introduction

1. This was an appeal in relation to proceedings 2025/00213859 brought by the appellant in the Consumer and Commercial Division of the Civil and Administrative Tribunal (Tribunal).

2. The appellant was a lot owner in Strata Plan No 71951, and the respondent was the strata plan’s strata manager. The appellant sought orders terminating the respondent’s contract with the owners corporation of the strata scheme, reimbursement of “about $36,000 back to the [lot] owners and $11,283.00 to the appellant. He also sought suspension of the respondent’s “Strata Manager license”.

3. On 11 September 2025, the Tribunal held a final hearing, and dismissed the proceedings that same day (Primary Decision).

4. On 20 October 2025, the appellant appealed. After a directions hearing at which the usual orders were made for the filing of evidence, the appeal was listed for final hearing on 9 April 2026.

5. As there was no appearance by the appellant, the appeal was dismissed pursuant to s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

6. We note that s 55(2) of the NCAT Act allows the Appeal Panel (or Tribunal) to reinstate proceedings that have been dismissed under s 55(1)(c) if the Appeal Panel (or Tribunal) considers that there is a reasonable explanation for that failure.

7. No application for reinstatement was made by the appellant.

8. Our orders included a timetable for submissions as to costs.

9. Both parties filed submissions pursuant to our directions.

10. For the following reasons, we have decided to order the appellant to pay the respondent’s costs as agreed or as assessed in accordance with the applicable costs legislation.

Preliminary issue

11. Neither party opposed us determining costs on the papers. As we are satisfied that the issue of costs can be adequately determined in the absence of the parties by considering their written submissions, we dispense with a hearing: NCAT Act, s 50(2).

Respondent’s submissions, 6 May 2026

12. In summary, the respondent:

13. submits that the relevant costs rule is that found in r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules), “and/or” the costs rule in 60(3) of the NCAT Act; and

14. seeks costs on the indemnity basis as agreed or as assessed; alternatively on the ordinary basis.

Appellant’s email, 12 May 2026

13. The appellant sent the Appeal Registry an email on 13 May 2026. Relevantly, the appellant stated:

On 09.04.2026 you sent the order case ID: 2025/00406265. [1] But

1. on 14.11.2025, I sent by email my applicant's withdrawal letter to the respondent Superior Strata.

Please see attached evidence.

2. Also, on 14.11.2025 or next day, I came to NCAT in Parramatta to lodge the applicant's withdrawal document of case 2025/00406265. I lodged the applicant's withdrawal document to the lady receptionist.

I asked her when my withdrawal applicant will reach NCAT in Sydney at Goulburn Street? The lady said she will fax that night, so document will reach NCAT Sydney by then at that time.

3. It seems that my withdrawal's applicant document was lost somewhere.

3. Would you please kindly investigate whereabout my withdrawal's applicant document as the order you sent on 09.04.26 is not fair for me as I have applied to withdraw this case on 14.11.25 to both respondent and NCAT.

4. Please advise what should I do with your order on 09.04.25 while you are investigating whereabout of my applicant withdrawal on 14.11.2025.

14. Accompanying the email were two documents.

15. The first document states:

tam Bien

[Email redacted]

To: Dilber Beattie

Fri, 14 Nov 2025 at 2:48 pm

Dear Sir/Madame,

I wish to withdraw my appeal application.

Please see the attachment for details.

16. The second document states:

Dated 14/11/25

Your reference: Case number 2025/00406255

Dear Sir/Madame,

My full name is: Cao Tam Bien

I would like to notify you that I wish to withdraw the applicant 2025/00406255

17. We note that the appellant’s email sent to the Registry was not sent to the respondent.

18. Upon receiving the email, the Registry conducted searches to see if the email had in fact been received. We have been advised by the Registry that, despite undertaking thorough searches, the Registry did not receive any notification from the appellant withdrawing his appeal.

19. We will return to this point below.

Appellant’s submissions, 19 May 2026

20. In summary, the appellant submits that:

21. he opposes the respondent's application for costs and submits that the appropriate order is that each party bear their own costs;

22. the relevant costs rule is that found in s 60 of the NCAT Act;

23. the appellant was self-represented throughout the proceedings and did not have the benefit of legal representation; he is not legally trained and pursued the proceedings based upon a genuine belief that he had standing and an arguable basis for appeal. In this respect, he refers to Hamod v State of New South Wales (2002) 188 ALR 659; [2002] NSWCA 97, where he submits the Court of Appeal acknowledged that self-represented litigants frequently experience difficulty understanding procedural and substantive legal requirements and that this context is relevant when assessing conduct;

24. there is no basis for an award of costs on the indemnity basis;

25. his attempt to withdraw the proceedings demonstrates that once he better understood the procedural and legal difficulties associated with the matter, he took steps to bring the proceedings to an end notwithstanding his status as a self-represented litigant;

26. there is no evidence that the appellant acted dishonestly, vexatiously, in bad faith, or with any ulterior purpose;

27. in Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, the High Court of Australia recognised that an unsuccessful litigant is not automatically liable for costs merely because the opposing party incurred expense;

28. the respondent's submissions improperly equate lack of success with misconduct.

29. The appellant further submits that the Appeal Panel should take into account:

30. his lack of legal representation;

31. the imbalance in legal sophistication between the parties;

32. the absence of dishonesty or bad faith; and

33. his genuine belief in the merits of his case.

34. Finally, the appellant addresses r 38 of the NCAT Rules. Here the appellant:

35. accepts that r 38 permits the Appeal Panel to award costs without proof of special circumstances;

36. submits that r 38 does not create an automatic entitlement to costs;

37. notes that in Lucantonio v Kleinert [2009] NSWCA 314, [2] the Court of Appeal confirmed that a costs discretion must still be exercised judicially having regard to all relevant circumstances;

38. submits that the Appeal Panel should exercise its discretion against making any costs order because:

(a) the appellant was self-represented; (b) there was no abuse of process; (c) the proceedings were commenced genuinely and not vexatiously; (d) the appellant did not intentionally disregard Tribunal orders; and (e) an adverse costs order would impose significant financial hardship upon the appellant.

Respondent’s submissions in reply, 28 May 2026 (Submissions of Didier Beatti)

23. For some reason, Dilber Beattie, who had been removed as a respondent on 12 November 2026, and replaced by the respondent on that date, filed costs submissions on 28 May 2026.

24. Somewhat confusingly, the submissions commence by stating that “These submissions on costs are made on behalf of Dilber Beattie (the Respondent)”.

25. We assume that these submissions are made on behalf of the respondent, and are the respondent’s submissions in reply. We assume, but do not know, that Mr Beattie is the licensee-in-charge of the respondent.

26. These submissions simplify the respondent’s position somewhat by:

27. confirming that the relevant costs rule is that found in r 38 of the NCAT Rules; and

28. not pursuing any claim for indemnity costs.

29. In summary, the respondent submits in reply that the Appeal Panel should make an order that the appellant pay the respondent's costs to reimburse the respondent what it describes as “the needless legal fees” incurred for the following reasons:

30. the appellant (sic – the respondent) had been forced to defend the “Original Proceedings” and now the appeal despite the fact that neither of these sets of proceedings were ever clearly explained, were fundamentally misconceived and entirely lacking in any substance;

31. the appellant pursued the appeal despite having the benefit of legal advice provided by a duly qualified Australian legal practitioner and a Senior Member of the Tribunal setting out specifically that he had virtually no prospects of success;

32. the appellant did not, despite dragging the respondent through the appeal, attend the final hearing of the appeal; and

33. the appellant has referred to case law and legal authorities that may not even exist.

Issues to be determined

28. The following issues fall to be determined. We state a summary of our conclusion in italics.

29. Did the appellant withdraw the appeal? No.

30. What is the relevant costs rule? Rules 38 and 38A of the NCAT Rules

31. Is the respondent entitled to costs? Yes.

32. Should costs be awarded? Yes.

Did the appellant withdraw the appeal?

29. It is appropriate to first consider the appellant’s submission that he withdrew his appeal.

30. We cannot accept that submission.

31. Giving the appellant the benefit of the doubt, while we accept that he wished to withdraw the appeal, and may have attempted to notify the respondent, we do not find, on the basis of the evidence before us, that he actually communicated any request to the Registry to withdraw the appeal.

32. We note that the appellant appears to recognise this himself when he refers to his “attempt” to withdraw the appal in his submissions.

What is the relevant costs rule?

33. The relevant principles for determining the relevant costs rule were recently stated by the Appeal Panel in Sader v Renbar Construction Pty Ltd (No 2) [2026] NSWCATAP 150 at [17]-[29] which we adopt and paraphrase below.

34. The starting point is s 60 of the NCAT Act which relevantly 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.

…

35. However, r 38 of the NCAT Rules 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.

36. That means that the relevant costs rule in the proceedings at first instance was that found in r 38.

37. Rule 38A then 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.

38. As the Appeal Panel stated in Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 (Allen) at [57], in applying r 38(2)(b) in relation to an appeal, as required by r 38A, the “amount claimed or in dispute” is the amount in dispute on appeal, not the amount in dispute in the proceedings at first instance.

39. Further, in The Owners - Strata Plan No 2341 v P& M Sachs Pty Ltd (No 2) [2023] NSWATAP 23, the Appeal Panel stated:

19 It is necessary to recognise that rule 38 is applicable directly to first instance proceedings and rendered applicable to appeal proceedings by the operation of rule 38A. It is not necessary, or appropriate, to approach the construction of rule 38 in its application to appeal proceedings on the basis that all parts of the rule are intended to have some operation in that context.

20 As the Appeal Panel noted in Hanave Pty Ltd v Wine Nomad Pty Ltd; Wine Nomad Pty Ltd v Hanave Pty Ltd (No 2) [2022] NSWCATAP 361 (Hanave (No 2)), at [63], rule 38 “says it applies if ‘the amount claimed or in dispute in the proceedings‘ is more than $30,000”.

21 As the Appeal Panel decisions in Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 and Hanave (No 2) make clear, in applying rule 38 to an appeal, “the proceedings” are the appeal proceedings, not the proceedings determined by the decision from which the appeal is brought.

22 It may not be meaningful to speak of a claim by an appellant in appeal proceedings, but that is not a reason to construe rule 38 in the manner suggested by the respondent.

40. The appellant filed his proceedings in the Tribunal on 18 January 2024. As noted above, he sought orders including for reimbursement of “about $36,000” to the lot owners, and $11,283.00 to the appellant himself.

41. Applying the principle in Allen which we have highlighted above, we consider that the amount in dispute on appeal is more than $30,000, and thus the relevant costs rules are those found in rr 38 and 38A of the NCAT Rules.

Is the respondent entitled to costs?

42. Therefore, prima facie “costs follow the event”, and special circumstances do not need to be established.

43. As the Appeal Panel noted in Sader v Renbar Construction Pty Ltd at [32], in Lirantzis v Calligas [2026] NSWCATAP 52**, the** principles regarding costs were set out in the Appeal Panel decision in Thompson v Chapman [2016] NSWCATAP 6 to the following effect:

44. rule 38 provides a general discretion to award costs;

45. the starting point in exercising such discretion is that the “usual order for costs” is that a successful party should be entitled to an order for costs in their favour;

46. the reason for an order for costs being made is that it is considered to be appropriate for the party who incurred costs caused by the other party in litigation to be reimbursed. An award of costs is by way of indemnity to the successful party and not as a punishment to the unsuccessful party;

47. the factors to be considered in awarding costs in a particular case are not confined as to do so would constrain the general discretion. However, factors that might influence whether the usual order for costs should apply include whether, by reason of the relative success of the parties on different issues and the time taken to determine those, that an order for costs based on issues should be made. Another factor might be whether by reason of the nature of the proceedings, the usual rule should otherwise be displaced in whole or in part.

48. Applying those principles, we consider that the respondent has established the basis for an award of costs.

Should costs be awarded?

45. As the Appeal Panel noted in Sader v Renbar Construction Pty Ltd at [127], the Appeal Panel stated in Beecraft Pty Ltd v Tudor; Tudor v Beecraft Pty Ltd [2021] NSWCATCD 119 that:

127 When rule 38 applies there is a general discretion to award costs and it is well established, by decisions such as News v Cotes [2019] NSWCATAP 186, Bonita v Shen [2016] NSWCATAP 159 and Thompson v Chapman [2016] NSWCATAP 6, that: (1) the starting point is that the usual order for costs should be in favour of the successful party, (2) the award is not to punish the unsuccessful party but to compensate the successful party for the costs incurred in the proceedings, and (3) departure from the usual order is permissible if the circumstances favour that course of action.

128 Simply stated, when rule 38 applies it is not necessary to establish special circumstances and the usual order is that costs follow the event (ie follow the outcome of the case) unless there is disentitling behaviour by the successful party: Latoudis v Casey [1990] HCA 59, Oshlak v Richmond River Council [1998] HCA 11. When rule 38 applies, as was observed in Tom v Jenkins [2018] NSWCATCD 24 at [12], the successful party can be said to have a reasonable expectation of being awarded costs.

(emphasis added)

46. As noted, the appellant submits that the Appeal Panel should exercise its discretion against making any costs order because:

47. he was self-represented;

48. there was no abuse of process;

49. the proceedings were commenced genuinely and not vexatiously;

50. the appellant did not intentionally disregard Tribunal orders; and

51. an adverse costs order would impose significant financial hardship upon the appellant.

52. We see no substance in the fact that the appellant was self-represented, in and of itself, militates against us ordering the appellant to pay the respondent’s costs. Similarly, nor does the fact that the proceedings were not found to be an abuse of process. While we decline to describe the appeal as vexatious, we would describe it as weak, and confused.

53. We see no substance in the alleged lack of compliance in the Appeal Panel’s orders.

54. Finally, it is well-established impecuniosity is no basis for not awarding costs: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42].

55. Weighing all the matters relied on by the appellant, even when considered cumulatively, we are not satisfied that we should decline to make an award of costs in the exercise of our discretion.

Orders

51. The Appeal Panel orders:

52. A hearing is dispensed with.

53. The appellant to pay the respondent’s costs as agreed or as assessed in accordance with the applicable costs legislation.

************

I hereby certify that this is a true and accurate record of the reasons for Decision of the New South Wales Civil and Administrative Tribunal.

Registrar

Endnotes

Being notification of the dismissal of the appeal.

Being notification of the dismissal of the appeal.

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