BPU v NSW Trustee and Guardian

NCAT Appeal Panel|2016-04-15

Reasons for decision

The appellant's appeal from a decision of the Tribunal, in the Administrative and Equal Opportunity Division, was listed for hearing on 6 October 2015 at 2.15 pm. At 11.36am that morning, the solicitor for the appellant informed the Registry of the Tribunal, by email, of the instructions received from the appellant to withdraw his appeal and that the NSW Trustee and Guardian (the Trustee) and the second respondent had been notified of these instructions.
When the matter was called for hearing, there was no appearance by, or for the appellant. Mr Othen, of counsel, appeared for the second respondent and there was no appearance for the Trustee. Mr Othen confirmed he had been notified of the appellant's instructions and sought formal orders for the application to be dismissed and the stay lifted. He also made an application for costs on behalf of the second respondent.
We made the following orders: 1. The appellant withdraws and the appeal is dismissed pursuant to subs 55(1)(a) of the Civil and Administrative Tribunal Act 2013, subject to the determination of the cost application by the second respondent. 2. The stay order made on 28 July 2015 is discharged forthwith. 3. On or before 14 October 2015, the second respondent to file and serve written submissions in regard to her cost application made today. 4. On or before 28 October 2015, the appellant to file and serve written submissions in reply. 5. Subject to the parties informing the Tribunal, in writing, by 28 October 2015, that he or she objects, the second respondent's cost application for costs is to be determined on the papers.
The second respondent filed and served her written submissions in accordance with order 3 above. Attached to the submissions were copies of email exchanges between the solicitor, acting for the second respondent in this appeal and the proceedings in the Tribunal below and the solicitor who had acted for the appellant in the proceedings below.
The appellant has not filed and served any written submissions in reply. Nor has the appellant communicated with the Tribunal since 6 October 2015.

The Tribunal's power to award costs

The Tribunal's power to award costs is set out in s 60 of the Civil and Administrative Tribunal Act 2013. That section 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. (4) …
As can be seen from the terms of s 60, the general rule is that each party to proceedings should pay his or her own costs. Subsection 60(2) gives the Tribunal a discretion to award costs where the Tribunal is satisfied there are "special circumstances" warranting an award of costs. Subsection 60(3) sets out the matters the Tribunal may have regard to in awarding costs.
As noted by the Appeal Panel in Obieta v Australian College of professionals Pty Ltd [2014] NSWCATAP 38, at [81], that it does not follow that where one or more of the abovementioned subs 60(3) factors are established a cost order should follow. It remains necessary for 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.
The second respondent argues that there are "special circumstances" in that in these proceedings, the appellant conducted himself in a way that unnecessarily disadvantaged her, the appellant's claim at first instance "never had much merit" and the appellant's appeal was misconceived and lacked substance. The second respondent also contended that the appellant's rejection of a settlement offer was also a matter relevant to the "special circumstances". We have dealt with the second respondent's arguments in more detail below.

The appeal and the appellant's Notice of Appeal

The appellant and the second respondent are brother and sister. The decision the subject of the appellant's appeal was a decision of the Tribunal, in the Administrative and Equal Opportunity Division, in the exercise of its administrative review jurisdiction under s 30 of the Civil and Administrative Tribunal Act. The decision the subject of review in the appellant's application before the Tribunal was the 2014 decision of the Trustee to approve the second respondent's proposal to sell the home of their father, which was also the family home. The home was located in an inner Sydney suburb and on 11 June 2015, the Tribunal determined the appellant's application for review and published reasons for decision: see BPU v NSW Trustee and Guardian [2015] NSWCATAD 117. The Tribunal's determination (i.e. decision) was in the following terms: "The decision of the NSW Trustee and Guardian made on 23 October 2014 is affirmed."
The appellant's father is 95 years of age and suffers from vascular dementia. He is a protected person and has been living in an aged care facility for more than two years. He is unable to return to his home. The second respondent is her father's guardian for decisions concerning accommodation and she is also his financial manager. She had proposed the sale of the family home as her father's Centrelink pension had stopped and there were insufficient funds in his bank account to meet the ongoing costs of his day-to-day care at the care facility.
The appellant had resided with his father at the family home prior to him being placed into the care facility. His father had made a will in 1997 in which he gave his whole estate to the appellant son, subject to a specified amount being paid to the second respondent.
The appellant objected to the sale of the family home and put forward an alternative proposal, namely that it be renovated and rented out. The appellant first put this alternative proposal to the Trustee on internal review and again, on external review, to the Tribunal. At [43] of its reasons for decision, the Tribunal found, after having considered both options, that "the risk and uncertainties associated with the rental option means that it cannot offer the same financial certainty and security as the sale option."
The appellant lodged his Notice of Appeal on 22 July 2015. On the front page of his Notice of Appeal the appellant said the decision he wanted to appeal was the decision of the Tribunal dated 11 June 2015. There is no dispute that this decision of the Tribunal is an internally appealable decision to the Appeal Panel: see Civil and Administrative Tribunal Act, subs 27(1) and 80(1).
Subs 80(2)(a) of the Civil and Administrative Tribunal Act provides that an internal appeal can be made "as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds."
In his Notice of Appeal the appellant identified the following as the orders he sought to appeal: "1) The order to sell the [name of the property]. 2) The order to sign discharge of Mortgage. 3) The order to sign discharge of caveat."
The appellant described his grounds of appeal as follows: "1) A Building Inspection was not warranted as it is an old house & and old houses are built illegally. All houses (or most houses) built before a certain time are illegal to todays standards. The Council does not police old houses classed as illegally built. 2) The [name] property was cleared for rental last year & Raine & Horne filled out the "Exclusive Management Agency Agreement Residential" form on 4/9/14. If the house was rented out on 4/9/14 then the rent money together with the $50,000 in my father's savings would have sustained Nursing Home Fee for 8.4 years if the house was continually rented."
In response to the question as to what orders the Appeal Panel should make, the appellant said: "1) For me to be given authority to find a Real Estate Agent … that will rent the house. 2) That I be given the keys to the house. 3) That I have Free Access to the house. 4) That I be compensated …. 5) To know how much is in my father's bank account to determine feasibility."
In response to the question as to whether he sought leave to appeal, the appellant ticked the "yes" box and added the words "I don't understand this question". However, he went on to reiterate his grounds of appeal.
The appellant also ticked the "yes" box to the question as to whether he was seeking leave to appeal from a decision of the Consumer and Commercial Division. Again he said he did not understand that question.

Reply to Appeal

The Trustee filed and served a Reply to Appeal on 18 August 2015 and the second respondent filed and served her Reply to Appeal on 26 August 2015.
In her Reply to Appeal, the Trustee responded as follows in regard to the appellant's grounds of appeal as identified in his Notice of Appeal: "The applicant (sic) does not raise any new issues or errors of law. The building report referred to was a joint report obtained by the applicant and Private Manager [second respondent] following original hearing 5.3.15. The building report from Olles Pty Ltd dated 15.5.15 reported essential repairs required prior to property being tenantable at $177467.47. …"
The Trustee said she supported the original orders that were made by the Tribunal and added the following comments in her Reply to Appeal: "In addition to reasons of Tribunal, [the second respondent] as Private manger has exchanged contracts for the sale of the property on 20.6.15 for $3,105,000. This is far in excess of the estimated value at the hearing of $1,900,000. There is a risk the sale may be jeopardised if settlement does not take place in accordance with the terms of the contract. The Applicant has a mortgage over the property the same solicitors … who acted for the applicant at the hearing are acting for him on the settlement of the sale."
The Trustee opposed leave being granted for the same reasons set out above.
The second respondent's Reply to Appeal is in similar terms to that of the Trustee.

Consideration

As we have noted, the second respondent argues that that there are special circumstances warranting an award of costs. These are: 1. the appellant conducted himself in a way that unnecessarily disadvantaged her; 2. the appellant's claim at first instance "never had much merit" and the appeal had none; 3. the appeal was misconceived and lacked substance; and 4. the appellant's rejection of offers to settle the matter.
In our view it is not for the Appeal Panel to re-consider, in this cost application, the "merits" of the claims before the Tribunal below. What is relevant is the merits or substance of the appellant's appeal and application for leave to appeal.
While the appellant has correctly identified the decision that is the subject of his appeal, he has incorrectly identified the orders that were made by the Tribunal. Nor were they orders the Tribunal had power to make: see Administrative Decisions Review Act 1997, subs 63(3). However, they were possibly decisions made by the Trustee and the second respondent as a consequence of the Tribunal's decision.
We have nevertheless assumed the appellant at all times intended to appeal the decision of the Tribunal so as to have it set aside and his proposal be reconsidered after he obtained further evidence. These are orders the Appeal Panel can make under s 81 of the Civil and Administrative Tribunal Act, if the appeal is allowed on a question of law, or if leave to appeal is granted and the appeal is allowed on the merits.
We agree with the Replies to Appeal of the Trustee and the second respondent that the appellant did not raise any question of law in his appeal. That is, he did not argue or submit the Tribunal had incorrectly applied the law, took into account irrelevant considerations in the exercise of its discretion, failed to give adequate reasons or any other error of law. Nor did he point to any error in the manner in which the Tribunal had gone about its task of fact finding.
As we have noted, there is no automatic right to appeal on the merits - leave to appeal must be granted by the Appeal Panel: see Civil and Administrative Tribunal Act, subs 80(2). As noted by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17, at [84], ordinarily it is only appropriate to grant leave in matters that involve: 1. issues of principle 2. questions of public importance; 3. an injustice which is reasonably clear and it would be unjust to allow a finding of the Tribunal to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact finding process in an unorthodox manner or in such a way that it is likely to produce an unfair result that it would be in the interests of justice for it to be reviewed.
In our opinion, the appellant's Notice of Appeal did not raise any matter relevant to any of the above issues. That is, he did not point to any possible injustice or unfairness arising from the decision and reasons for decision of the Tribunal that might warrant the granting of leave to appeal: see K v K [2000] NSWSC 1052 at [15].
Nor, in our opinion, do any of the above issues arise. The Tribunal provided detailed reasons for decision where the appellant's case was fully explained and considered. Also set out in the Tribunal's reasons for decision is the Tribunal's reasoning as to why it found the proposal of the second respondent to be preferred to that proposed by the appellant. In this regard the Tribunal did not make a finding that the appellant's proposal lacked merit.
Accordingly, we are satisfied on the material before us that the appellant's appeal and application for leave to appeal was misconceived and lacked substance.
In regard to the manner in which the appellant conducted himself, the second respondent contended she was unnecessarily disadvantaged because the appellant had left it until 2 hours prior to the hearing to inform her that he was withdrawing his appeal. It is the contention of the second respondent that had the appellant withdrawn his appeal after being served with her Reply to Appeal and that of the Trustee, or accepted the settlement offer that was made she would not have incurred the costs of briefing counsel and his attendance at the hearing on 6 October 2015.
As we have noted, the Trustee's Reply to Appeal was filed and served on 18 August, some 4 weeks after the appellant had lodged his appeal. In that Reply, the Trustee put the appellant on notice of its position that his appeal and application for leave to appeal lacked substance. The Trustee also noted that contracts had been exchanged for the sale of the family home. They were exchanged, we note, 9 days after the Tribunal published its decision and 4 weeks prior to the appellant lodging his Notice of Appeal. Furthermore, the purchase price of the sale far exceed that which was anticipated at the time the Tribunal heard the appellant's review application and it is evident from the emails attached to the submissions of the second respondent that the appellant was aware of the sale.
The second respondent's Reply to Appeal was filed and served 10 days later and reiterated the matters contained in the Trustee's Reply to Appeal.
We note the content of the following emails exchanges between the solicitor of the second respondent, Mr E Kyriacou, and the solicitor of the appellant who represented him in the proceedings below, Mr P Ronis: 1. 31 July 2015, email sent by Mr Kyriacou to Mr Ronis, in which he confirmed the settlement figure for the sale of the family home as finalised at a conference held at Mr Ronis's firm, on 28 July 2015. The email also attached a copy of the appellant's Notice of Appeal and sought clarification as to whether he continued to act for the appellant. Concerns were raised as to the appellant's capacity to give instructions. The email also advised that the appellant was put on notice that unless he immediately withdrew his appeal and provide Mr Kyricou with the necessary documents to complete the sale and settlement of the matter the second respondent would be seeking costs on an indemnity basis; 2. 3 August 2015, email sent by Mr Kyriacou to Mr Ronis, in which he sought confirmation that he continued to act for the appellant. Mr Ronis replied the same day to say he continued to act for the appellant in regard to the appellant's mortgage over the family home and the settlement thereof on the sale of the property; and 3. 16 September 2015, email sent by Mr Kyriacou to Mr Ronis, in which he again requested documentation from the appellant in order to complete the sale of the family home. Mr Kyricou also reiterated that the appellant was on notice that the second respondent would seek costs "on an indemnity basis if he does not withdraw his appeal and or/is successful at the appeal listed for 6 October 2015"; 4. 17 September 2015, email sent by Mr Kyriacou to Mr Ronis, in which he again requested documentation from the appellant so that the sale of the family home could be completed. Mr Kyriacou said instructions could be obtained to deposit $500,000 into the trust account/controlled monies account pending resolution of the appellant's entitlement. Mr Kyriacou also reiterated that it would bring the email to the attention of "NCAT or any other Court if necessary in respect to a claim of costs."
We assume the "settlement offer" referred to in the submissions of the second respondent is that referred to in the above email exchanges. Leaving aside the question as to the nature of these "settlement offers", there is no evidence that they were in fact made to the appellant, who had personally completed and lodged his Notice of Appeal without any legal representation. However, it is difficult to imagine he was not made aware of them as the settlement of the sale of the family home directly related to the decision of the Tribunal that was the subject of the appeal. We assume the matter was ultimately settled to the satisfaction of the appellant. On what basis it was settled has not been explained. Accordingly, we have not considered this issue further other than to note that a proposal for settling the sale of the family home was made to the appellant on 17 September 2015.
We agree with the second respondent that leaving it until 2 hours before the appeal was due to be heard to inform her legal representatives that the appeal would be withdrawn caused an unnecessary disadvantage to her. That is, she incurred unnecessary costs in preparing for the hearing and having counsel briefed to appear at the hearing.

Conclusion

We accept the appellant was not initially legally represented in his appeal and application for leave to appeal. Nevertheless, for the reasons set out above, we have found that the appellant's appeal and leave to appeal was misconceived and lacked substance. We have also found that the appellant's last minute withdrawal of his appeal unnecessarily disadvantaged the second respondent causing her to incur costs she should not have incurred had he withdrawn his appeal and application for leave to appeal after her Reply had been filed and served. That is, we are satisfied that there are special circumstances as set out in subs 60(3)(a) and (e) of the Civil and Administrative Tribunal Act.
We are also satisfied that these special circumstances warrant an award of costs in favour of the second respondent. We do so on the basis that the appellant's Notice of appeal failed to identify any error in the Tribunal's decision or reasons for decision. That is, it lacked any merit and was merely seeking to re-agitate matters that had been comprehensively dealt with by the Tribunal below and the Trustee prior thereto.
Accordingly, it is appropriate to make an order that the appellant pay the second respondent's costs of these proceeding from the date on which she filed her Reply to Appeal (i.e. 26 August 2015). Those costs should be paid as agreed or as assessed on a party -party basis. In our view, there is no basis for the costs to be paid on an indemnity basis.
We order: 1. The appellant shall pay the second respondent's costs of the appeal as agreed or assessed. 2. This Costs Order is to take effect 28 days after the date of this decision.

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: 15 April 2016

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