Blackman v Ya

NCAT Appeal Panel|2022-10-31

Summary

The appellant Ms Hayley Blackman (Tenant) appeals from a decision of the Consumer and Commercial Division of the Tribunal (Tribunal) of 29 July 2022 in matter RT 22/14285 (the Decision).
The Tribunal ordered the respondents (Landlord) to pay the Tenant $884.00 on or before 12 August 2022.
For the following reasons, the appeal should be dismissed.

Background

By application dated 31 March 2022, the Tenant sought a variety of orders from the Tribunal, including but not limited to orders for the payment of $15,000 compensation, orders that the rent was excessive; orders that the rent be reduced because the premises were unusable or uninhabitable; orders that the Landlord carry out repairs and orders declaring that a termination notice had no effect because it was retaliatory.
As the Decision notes, a directions hearing was held on 1 April 2022, at which the usual orders were made for the filing of evidence.
The matter was then listed for hearing on 27 April 2022. On this occasion the matter was adjourned, the Decision noting at [6]: … The Tribunal ordered the tenant to provide any documents relied on by 11/5/2021, including a schedule of all items and amounts of compensation claimed. The Tribunal ordered the landlords to provide documents relied on by 2/6/2022. The Tribunal ordered that evidence from parties or other witnesses was to be in writing. The Tribunal drew attention to the importance of expert witnesses and to the Tribunal guidelines concerning experts. The Tribunal ordered that the tenant could vacate the premises at any time without a break lease fee.

The Decision

It is appropriate to summarise the structure of and reasons for the Decision.
The Decision commenced by setting out a summary of the orders sought by the Tenant. These were summarised as: a. compensation for or rent reduction because of failure of the landlords to undertake timely maintenance or repairs concerning roof damage and leaks; b. compensation for or rent reduction because of failure of the landlords to undertake timely maintenance or repairs concerning overflowing gutters and downpipes; c. compensation for or rent reduction because of failure of the landlords to undertake timely maintenance or repairs concerning drainage problems; d. compensation for or rent reduction because of failure of the landlords to undertake timely maintenance or repairs concerning rising damp; e. compensation for or rent reduction because of failure of the landlords to undertake timely maintenance or repairs concerning a flooded garage; f. compensation for or rent reduction because of failure of the landlords to undertake timely maintenance or repairs concerning ventilation; g. compensation for or rent reduction because of failure of the landlords to undertake timely maintenance or repairs concerning plumbing problems; h. compensation for or rent reduction because of failure of the landlords to undertake timely maintenance or repairs concerning mould in the premises; i. compensation for damage to the tenant's goods caused by several inches of water flooding the garage, with the list of items claimed for at T1, pp162-163 (part of $5,700); j. compensation for damage to the tenant's goods caused by damp and mould in the house, with the list of items claimed at T1, pp163-164 (part of $5,700). k. an order that a termination notice (for frustration) of 25/3/2022 is retaliatory. l. an order that a termination notice (for frustration) of 25/3/2022 is otherwise ineffective.
The Tribunal then summarised the procedural background referred to above. The Tribunal next recorded the evidence filed in the application and made findings of "jurisdictional facts".
The Decision then states that the Tribunal would deal with the Tenant's claims "one by one".
In relation to the Tenant's claims that the notice of termination was retaliatory or otherwise ineffective, the Tribunal noted that since the tenancy had already terminated, there was no utility in making any orders.
In relation to the Tenant's claim for a rent reduction because of the failure of the Landlord to undertake timely maintenance or repairs concerning the roof, the Tribunal noted that this claim was not pressed at the hearing.
In relation to the Tenant's claim for a rent reduction because of the failure of the Landlord to undertake timely maintenance or repairs concerning overflowing gutters and downpipes, the Tribunal allowed $684, a figure proposed by the Landlord and being slightly above what the Tribunal would otherwise have awarded.
In relation to the Tenant's claim for a rent reduction because of the failure of the Landlord to undertake timely maintenance or repairs concerning drainage problems, the Tribunal dismissed the claim.
In relation to the Tenant's claim for a rent reduction because of the failure of the Landlord to undertake timely maintenance or repairs concerning a flooded garage, the Tribunal allowed $200.
In relation to the Tenant's claim for damage to their goods causes by flooding in the garage, the Tribunal dismissed the claim.
The Decision then states: 25. The remaining items of the tenant's claim are dismissed on the basis that the tenant has taken far too long to present her claims and she was warned about this at the beginning of the resumed hearing and given the opportunity to order the claims as she sought fit. It is not an appropriate use of Tribunal time or other party's time to yet again adjourn this matter. 26. Additional oral reasons were provided at hearing.
The Landlord did not provide a transcript of these "additional oral reasons". While the Tenant did provide additional transcript on the day of the appeal, none of this transcript was concerned with "additional oral reasons" for dismissing the balance of the Tenant's claims.
We listened to the sound recording of the conclusion of the second day of the hearing. The Tribunal Member states: I have otherwise recorded that I am dismissing the remaining parts of the claim on the basis that tenant has taken far too long to present her claims and she was warned about this at the beginning of the hearing and given the opportunity to order the claims as she saw fit. It is not an appropriate use of Tribunal time or other parties' time to yet again adjourn this matter.

Notice of Appeal

There are four grounds of appeal stated in the Notice of Appeal.
The first ground of appeal was that the Tribunal failed to attend to a substantial argument of the Tenant and in doing so failed to afford her natural justice. This ground is particularised as follows: a. The Tribunal identified that the [Tenant] was claiming orders based on 10 separate issues. b. The [Tenant] and the [Landlord] provided evidence that provided the basis of the claims in relation to those 10 separate issues. c. The Tribunal made findings about only 5 of the issues and dismissed the remaining claims on the basis that "[the] tenant has taken far too long to present her claims... d. It was open to the Tribunal to either adjourn the matter to allow time for all of the claims to be considered, or reserve its decision to enable proper and full consideration of all the claims. e. Failing to properly engage with the [Tenant]'s case and address all of her claims is a failure to respond to a substantial argument is an error of law.
The second ground of appeal was that the Tenant was denied procedural fairness. This ground is particularised as follows: a. The Tribunal is bound to afford procedural fairness/natural justice to parties to its proceedings, including giving parties an opportunity to know the case against them, to meet that case and to advance their own: Kia v West (1985) 19 CLR 550; Civil and Administrative Tribunal Act 2013 ss 38(2) and (5). b. The Tribunal denied the [Tenant] procedural fairness by refusing to consider the evidence of the parties. c. The Tribunal made findings about only around half of the claims and dismissed the remaining claims on the basis that [the] tenant has taken far too long to present her claims. d. It was open to the Tribunal to either adjourn the matter to allow time for all of the claims to be considered or reserve its decision to enable proper and full consideration of all the claims. e. The Appellant was denied a reasonable opportunity for all her claims to be considered in the proceedings. This is an error of law.
We note that the first two grounds substantially overlap.
The third ground of appeal was that the Tribunal failed to set out adequate reasons for its Decision. This ground is particularised as follows: a. The Tribunal failed to outline the following as required (Collins v Urban [2014] NSWCATAP 17 and 62(3) Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act); i. the findings on material questions of fact, referring to the evidence or other material on which those findings were based, ii. the Tribunal's understanding of the applicable law, iii. the reasoning processes that lead the Tribunal to the conclusions it made b. In particular, the Tribunal did not set out adequate reasons in relation to: i. How it determined the amount of compensation and rent reduction awarded to the [Tenant]; ii. Why it decided to dismiss around half of the [Teneant]'s claims; c. The Tribunal failed to set out the reasoning process that led it to the determination of the amount of compensation and rent reduction awarded to the [Tenant].
The fourth ground of appeal was that the Tribunal may have caused the Tenant to suffer a substantial injustice because the Decision was not fair and equitable and was not supported by evidence. In the alternative the Decision was against the weight of the evidence.
This final ground of appeal was particularised as follows: a. the Tribunal failed to appropriately consider the significant evidence before it regarding the [Tenant's] losses as a result of the Respondent's failure to adequately address the repair issues at the property. b. the [Tenant] relied upon some of the following documents: i. Summary of events and issues during the tenancy ii. Summary of inconvenience ill. Summary of economic and non economic losses iv. Notice of termination on the basis that the agreement was frustrated due to mould issues v. Chronology of events vi. Photographs vii. Mould report viii. Evidence as to value of damaged goods. ix. Statements from various people who were familiar with the property x. Statement from previous tenant detailing the mould and repair issues she experienced living at the property.
The Tenant also says that the Tribunal erred as there is now fresh evidence that was not available at the time of the hearing. This evidence related to her moving costs.
The Tenant asks that the appeal be allowed and the matter remitted to a differently constituted Tribunal for hearing, with both parties being granted leave to file and serve fresh evidence.

Reply to Appeal

The Landlord supports the Decision for the reasons stated in the Decision.

Tenant's submissions

In her written submissions the Tenant states: In summary the four grounds are appropriate because: Over five of my claims were not heard at all and were dismissed on the basis of time. Insufficient reasons were given for why they were dismissed. As a result the amount of compensation that was awarded amounted to a total of $884. This is an amount significantly less than the costs I have incurred. It was not explained exactly how the figures were determined and calculated by either the Member nor the Respondent. Several of my claims are not addressed accurately or factually. The Tribunal failed to take into consideration evidence in a way to reach an accurate and factual conclusion.
The Tenant then submits that the five claims that the Tribunal dismissed due to time were the claims in her application identified above at [13] as (d), (f), (g), (h) and (j). The Tenant told us that of all these items, the claims in respect of the mould were the most significant.
The Tenant then submits: As a consequence of dismissing the 5 remaining claims it not only means they are not heard, it also means the the [sic] [T]enant is not given an opportunity to put forth her claims (as seen above) to the associated costs that resulted from both the claims that were established and the claims that were not heard. Compensation Amounts Were Not Explained On two of the five claims the Tribunal Member heard he found in favour of the tenant and awarded an amount of compensation. For the amount of $684 for delays in fixing guttering. The Respondent being the Landlords Property Manager Melissa Brokman determines that figure. It is discussed in Sound recording shausf0_20220729-1310_01d8a34c955f6a90. Mp3 in the section between 00:23:22 and 00:30:23. The figure is not broken down to be accurately determined into how much is a rent reduction and how much was for damage to goods. The generalised nature makes it really difficult for the tenant to then determine all the other amounts of compensation that would then need to be determined relatively. For the amount of $200 re water entering the garage, it is discussed in the sound recording shausfO20220729-1310 01d8a34c955f6a90. Mp3 in part 01:26:10 to 01:29:01. In summary …. It is never made clear to the Applicant the method used to reach those figures and why is came to those figures. There is a reference to loss of use and quiet enjoyment but no reasoning for how he arrived at the figure of $20 a week for 10 weeks. As it is not clear how the figure was come to. Had the Tribunal Member made it clear how he determined that amount then it would give the tenant a chance to determine if that amount was calculated accurately. It was only stated that it was for loss of use of garage and quiet enjoyment. The garage is a very large 2 car garage and the only secure storage on the property outside of the homes [sic - home's] interior. An equivalent commercial storage space of that size would cost considerably more than $20 a week. The total rent at the house per week being paid by the tenant was $380 so $20 is a small sum comparatively. [ellipses as in original] Summary and Evidence of Costs This amount of compensation does not reflect the actual burden of economic costs I suffered as a direct result of the problems with my tenancy, moving costs and costs to bring my matter to NCAT. The actual costs to date for which I have receipts is equal to $6165.56 The amount of $884 simply does not come close to compensating me and my young daughter for the severe financial burdens we have suffered due to the tenancy and matters put before the Tribunal. In the course of the tenancy I paid rent to a total of $10 205.71 to the landlords and never caused any breach to the agreement. It would be fair to assume that the landlord should pay my costs and an amount of non economic loss as compensation when as concluded by the member they breached their obligations under the rent tenancy act. I urge the [A]ppeal [P]anel and Tribunal to consider the discrepancies between the amount of compensation awarded and my actual economic costs. Please find attached table of actual costs so far. … Fresh Evidence There is fresh evidence that was not available before the last submission date for the [Tenant's] evidence on the 18/05/22. As the [T]enant moved after that date on the 1/06/22 her removalists costs weren't yet finalised. The continued gutter, drainage, subfloor and mould problems were still occurring and were photographed and videoed well after that submission date up until I vacated on the 8/06/22. I have attached some general examples of the fresh evidence that would be relevant to seek leave for relying on if the matter was to be reheard. You'll see some examples of photos taken on the 21/05/22. For reference the original submission contains similar photos/screenshots supplied from a video and photos taken on the 7/04/22. I can illustrate with these that elements of the claims were ongoing and evidence post dates the original submission date. (Pages 23) and some receipts dated 19/05/22, 24/05/22 and 1/06/22. (Pages 20, 21, 22) there is further similar fresh evidence, that could not have be logically admitted into the [Tenant's] evidence as it occurred after the 18/05/22. Conclusion I Hayley Blackman the Appellant challenge the orders made on the 29th July 2022 in RT22/14285. I ask that the NCAT Appeal [P]anel allow [sic] my appeal. To allow the matter to be remitted to a different Tribunal to be determined by law. I ask for leave to be granted to allow me to file and serve fresh evidence in newly the remitted matter. The [Tenant] also intends to seek leave to supply a typed transcript of the relevant parts of the 2 hearings as soon as those transcripts are completed. The [Tenant] has included 2 copies of the Hearings for matter RT22/14285 sound recording from the 23/06/22 and the 29/07/22.
These matters were amplified in oral submissions at the appeal hearing.

Respondent's submissions

The Landlord did not provide extensive submissions to the Appeal Panel in response to the appeal. In summary, the Landlord submitted that: 1. the appeal should not be granted as the Tenant had already had 2 one and a half hour hearings and had been warned by the Tribunal that she ran the risk of her claims being dismissed dure to her lack of preparedness; 2. they should be awarded costs.

Nature of an appeal

Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section 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)).

A question of law

In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing a question of law giving rise to an appeal as of right. These include where there has been a failure to provide proper reasons: Prendergast at 13 and where there has been a failure to afford procedural fairness: Prendergast at 13.

Leave to appeal

Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if 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).
The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at 84 that: Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) Issues of principle; (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; (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.
Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].

Consideration

It is convenient to first consider Grounds Three and Four as these can be dealt with expeditiously.

Ground Three

The Appeal Panel has recently set out the relevant principles as to adequacy of reasoning in decisions in Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 at [58] as follows: The NSW Court of Appeal in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (per Bell P) helpfully set out the principles relevant to adequacy of reasons at [66] - [77]. They are summarised as follows: (1) The function of the appeal court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard. (2) The quantity (or detail) of reasons, necessary for those reasons to be adequate may vary both with the nature of the decision maker, i.e. whether or not it is a court or tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided. (3) As to the quality of reasons, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons is appropriate than may be the case when an appellate court is hearing an appeal from another court. (4) Even in the less formal setting of a tribunal there are certain minimum characteristics that a Tribunal's reasons must possess. These are supplied, in relation to the Tribunal, by s 62(3) of the NCAT Act which, requires there to be set out in reasons (when requested by a party): (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that lead the Tribunal to the conclusions it made. (5) At least a basic explanation of the fundamental reasons which led the Tribunal to its conclusion is necessary. (6) It is not necessary for a judge to detail each factor which he or she has found to be relevant or irrelevant. Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient if the inference as to what is found is appropriately clear. (7) Reasons need not be elaborate. (8) Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. (9) The court should not read passages from the reasons for decision in isolation from others to which they may be related. (10) The reasons must be read fairly and as a whole. (11) The reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error. (12) There should be a degree of tolerance for looseness in the language of the Tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips.
Applying these principles, we are not satisfied that the reasons for Decision were inadequate in part or at all. In particular, the reasons dealing the decisions to award compensation of $684 and $200 meet the minimum standard of reasoning required.

Ground Four

The primary matter agitated here by the Tenant was that the Decision of the Tribunal was against the weight of the evidence in that by not determining the five items referred to above, the Tribunal failed to take into account evidence that was relevant to the items that the Tribunal did consider.
We do not accept this submission. That is because the evidence that the Tribunal allegedly failed to take into account was not before the Appeal Panel, and was not identified to us even in a general way, so we cannot determine to what extent the submission is persuasive.
The second reason for refusing this ground of appeal is we were not satisfied that the fourth ground of appeal involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.

Grounds One and Two

We return to Grounds One and Two, which we consider can be deal with together and are better considered as a constructive failure by the Tribunal to exercise jurisdiction arising from the failure to afford the Appellant procedural fairness.
Whether there has been a constructive failure to exercise jurisdiction is a question of law: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33.
The circumstances in which a Tribunal may be found to have failed to constructively exercise jurisdiction were summarised by the Appeal Panel in Goncalves v Bora Developments Pty Ltd [2021] NSWCATAP 231 at 9: In this regard, a material failure by the Tribunal to respond to a "substantial, clearly articulated argument relying upon established facts" may be characterised either as a failure to afford natural justice or as a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24]- [25] (Gummow and Callinan JJ; Hayne J agreeing at [95]); DVE18 v Minister for Home Affairs [2020] FCAFC 83; (2020) 276 FCR 401 at [34].
It is implicit in the Decision that the Tribunal had s 36 of the NCAT Act in mind when it decided not to adjourn the matter to enable a hearing of the five remaining items. Section 36 provides: 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural 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. (2) The Tribunal must seek to give effect to the guiding principle when it - (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal - (a) a party to proceedings in the Tribunal, …
In Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 the High Court accepted that principles of case management, such as the Tribunal at first instance appears to have invoked, ought not, except possibly in extreme circumstances, be employed to shut a party out from litigating a case which was "fairly arguable". The High Court reiterated that although case management is an "important and useful aid" for ensuring the prompt and efficient disposal of litigation, it is not "an end in itself", and cannot "supplant" the ultimate aim of a court, which is the "attainment of justice".
The issue raised by these grounds turns materially on whether the Tribunal erred by placing case management considerations and observance of the "guiding principle", which finds expression in s 36(1) of the NCAT Act, above the attainment of justice by unfairly shutting the Tenant out from litigating part of her case.
We are not persuaded that the Tribunal erred by not hearing argument about the five items referred to above on the basis of: 1. informing the Tenant at the end of the hearing on 23 June 2022 that: I will expect Ms Blackman that you will move much more expediently on the next occasion. … If you do not you may find yourself cut off and I will simply dismiss the matters we don't reach if our failure to reach them appears to be because of your lack of preparedness for the hearing. Understood?" 1. informing the Tenant at the commencement of the hearing on 29 July 2022 that: I think I will be reluctant to let the matter continue past today and we have an hour and a half today. … Which means I will simply dismiss the matters we don't reach because it seems to me that you were not particularly well organised last time to get through the matters properly.
In these passages, the Tribunal made clear to the Tenant that how her case was presented was a matter for the Tenant, but that it was in her interest to prioritise the presentation of the separate parts of the claim. With respect to her, the Tenant's submission that the parts of her claim which she alleges were not considered were amongst the most important parts of her case confirms that the Tenant did not proceed in the manner which, sensibly, the Tribunal suggested to her was in her interest. The fact that the Tribunal cautioned the Tenant as it did a month prior to the hearing is influential in our decision. As is self-evident, the Landlord was entitled to a reasonable share of the time available for the hearing of the proceedings. Nothing to which we have been referred demonstrates that the Tribunal's allocation of hearing time to the parties was unfair, arbitrary, or without appropriate notice and reasons.
As Aon makes clear, the opportunity from which a litigant will not normally be shut out in the interests of case management is to present a "fairly arguable case". Neither in reliance upon anything to which we have been referred in the evidence which was before the Tribunal at first instance, or in the further evidence upon which she sought to rely in the appeal, has the Tenant demonstrated that the Tribunal denied her procedural fairness by shutting her out from presenting a fairly arguable case.
In Majoor v Macquarie University [2022] NSWCATAP 213 the Appeal Panel said: The Tribunal must ensure that a lack of legal skill or objectivity does not prevent a self-represented party from claiming rights (including claims, defences or legal errors) that are supported by the evidence. In Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 (1 February 2002) the Administrative Decisions Tribunal commented that we "should not deny the applicant the opportunity to present his case at a hearing if we can identify an arguable case from the material before us." A significant qualification to that principle is that the evidence supporting the claim must be before the decision maker. It would be wrong for a decision maker to suggest a claim, or to find in favour of a self-represented applicant, where there was insufficient evidence to support the claim. … (emphasis added)
In this appeal, the Tenant was directed to file all the evidence given to the Tribunal that she intended to rely on in the appeal. As she did not do so, consistent with the authorities to which we have referred, we are not persuaded that there was a constructive failure to exercise the Tribunal's jurisdiction. Put bluntly, the Tribunal was required to determine controversies which were agitated before it, and did not fail to exercise its jurisdiction by failing to determine controversies which were not.
In those circumstances, we would not allow the appeal on either the first or second grounds of appeal.

Conclusion

For the above reasons, in relation to any question of law, we would dismiss the appeal. In relation to other errors, we refuse leave to appeal.

Other - Costs

The Landlord made an application for costs, those costs being time spent in preparing for and attending the hearings, and for incidentals such as photocopying expenses.
We explained to the Landlord at the hearing that s 60 of the NCAT Act provided that each party to proceedings in the Tribunal is to pay their own costs (s 60(1)), but that the Tribunal may award costs only if it was satisfied that there are "special circumstances" warranting an award of costs (s 60(2)). We then read s 60(3) to the Landlord's representative which sets out matters the Tribunal may have regard to in determining whether or not there are "special circumstances".
In summary, the Landlord relied on s 60(3)(a), being that the Tenant conducted the proceedings in a way that unnecessarily disadvantaged the Landlord, primarily by late service of documents and not providing hard copies of the materials as directed, only providing document on a USB.
In Edwards v Commissioner for Fair Trading, Department of Customer Service [2019] NSWCATAP 249, at [9], the Appeal Panel said: "Special circumstances are circumstances that are out of the ordinary, but need not be those which are exceptional or extraordinary. These principles are well established and have been consistently applied in this Tribunal: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]; Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222 at [8]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32]."
Putting aside the issue that any application for the costs of the Tribunal hearing should have been made to the Tribunal, we do not consider that the factors agitated by the Landlord establish circumstances that are out of the ordinary either in the Tribunal proceedings or on appeal. These are ordinary incidents of litigation.
We dismiss the application for costs.

Orders

The Appeal Panel orders: 1. In relation to any question of law, the appeal is dismissed. 2. In relation to any other ground of appeal, leave to appeal is refused. 3. The respondent's application for costs is dismissed.

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 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: 14 November 2022

At a glance

Court

Decision date

Source

Judgment (18 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (18)