Chief Executive Officer (Housing) v Pepperill & Ors [2025] NTCA 4

Respondents: Australian Lawyers for Remote Aboriginal Rights

Chief Executive Officer (Housing) v Pepperill & Ors [2025] NTCA 4

• [1] In Chief Executive Officer (Housing) v Pepperill & Ors [2024] NTCA 10, this Court dismissed an appeal from the decision of the Supreme Court in Pepperill & Anor v CEO (Housing) [2023] NTSC 90. A notice of contention was also dismissed.
• [2] The respondents sought an order for their costs of the appeal, including their costs of determining the issue of costs. The respondents' position was based on the important principle that guides the exercise of the Court's discretion on costs, that the successful party is generally entitled to their costs.[1]
• [3] The appellant argued that there should be no order as to the costs of the appeal because the decision on the appeal 'substantively displaced and/or clarified the judgment ... below in a critical respect favourable to the appellant'.

• [4] By r 63.01 of the Supreme Court Rules 1987 (NT), the Court has a broad discretion with respect to costs.
• [5] The guiding principle that the successful party should ordinarily be awarded its costs may be departed from in circumstances where a differential costs order is appropriate.[2] The circumstances in which such an order may be appropriate include where: (a) in respect of one or more issues, the successful party has 'unfairly, improperly or unnecessarily increased the costs', including unreasonably pursuing or persisting with points which have no merit; (b) the bulk of the time has been taken on an issue on which the unsuccessful party has succeeded, even if the successful party has not acted unreasonably in raising those issues; and/or (c) where a particular issue or group of issues is clearly dominant or separable, and the application of the general rule may involve hardship on a losing party which has nevertheless succeeded on that issue or group of issues.[3] Whether or not such circumstances are characterised as 'special',[4] what is required to depart from the guiding principle is circumstances where a differential costs order is appropriate.

• [6] The appellant submitted that the protracted and unusual procedural history of this matter, and this Court's conclusions that a landlord's obligation under s 48(1)(a) of the Residential Tenancies Act 1999 (NT) ('RTA') is to take reasonable steps to ensure that premises or ancillary property are habitable (relevant to which are questions as to the nature and degree of the risk to or impacts upon the health, safety and/or reasonable comfort of the tenants, the measures available to the landlord to alleviate the risks or impacts, the capacity and power of the landlord to control or address those risks or impacts and the nature and extent of any expertise or special skill involved)[5] endorsed the approach taken by the Northern Territory Civil and Administrative Tribunal on review, and rejected the approach taken by the Court below. Consequently, it was argued that despite the appeal being dismissed, the respondents' position in the appeal was not vindicated any more than the appellant's position in the appeal.
• [7] The respondents argued that the practical result[6] of the proceeding was that its legal challenge in the Supreme Court was upheld by this Court with the matter remitted to the Tribunal for determination in accordance with the Court's decision.

No warrant for departure from the general principle

• [8] The order made by this Court was to dismiss the appeal but vary the order made by the Supreme Court remitting the matter back to the Tribunal for determination in accordance with the Supreme Court's judgment, particularly at paragraph [47], requiring the Tribunal to determine the matter in accordance with this Court's judgment rather than the Supreme Court's judgment.
• [9] By our judgment, this Court concluded, contrary to the submissions of the appellant, that the Supreme Court had made no errors in concluding that:

(a) If running water were not supplied to the respondent tenants' premises, they would not be habitable within the meaning of the RTA.[7]

(b) Section 48(1)(a) of the RTA obliges the appellant to ensure that running water is supplied to the respondent tenants' premises.[8]

(c) The quality of the water which the appellant permits to be supplied to the premises is a habitability issue, and the appellant is obliged to ensure that the water supplied by the Power and Water Corporation is safe to drink because it is a matter of health and safety.[9]

(d) Whether the premises were not habitable, and whether the appellant took reasonable steps to ensure the habitability of the premises are yet to be determined by the Tribunal.[10]

(e) The Tribunal erred in law in holding that the quality of the drinking water supplied to the respondent tenants' premises was not an issue of habitability for the purposes of s 48(1)(a) of the RTA.[11]

• [10] The variation of the order remitting the matter back to the Tribunal for determination of the tenants' applications was made because this Court had determined the appeal.[12]
• [11] It follows that the appellant cannot be said to have had any significant measure of success in this appeal from the decision of the Supreme Court that warrants a departure from the general principle that the successful party should be awarded its costs.

• [12] We make the following orders:
  1. The appellant is to pay the respondents' costs of the appeal, including the costs of determining the issue of costs.

[1] Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [25].

[2] Value Inn Pty Ltd v Proprietors of Unit Plan 2004/048 [2020] NTCA 8 ('Value Inn') at [31] per Grant CJ and Mildren AJ, and the authorities there cited.

[4] As the appellant sought to do in reliance on the observations of the High Court in Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53 at [6].

[5] See Chief Executive Officer (Housing) v Pepperill & Ors [2024] NTCA 10 at [96], [108].

[6] Citing Doppstadt Australia Pty Ltd v Lovick & Son Developments (No 2) [2014] NSWCA 219 at [15]. Reliance on this authority in the circumstances of this case is somewhat misplaced because that case concerned an appeal from various components of a monetary award and cross-appeals which impacted on that award.

[7] Chief Executive Officer (Housing) v Pepperill & Ors [2024] NTCA 10 at [98]- [99].

[8] Chief Executive Officer (Housing) v Pepperill & Ors [2024] NTCA 10 at [102]- [103].

[9] Chief Executive Officer (Housing) v Pepperill & Ors [2024] NTCA 10 at [105]- [106].

[10] Chief Executive Officer (Housing) v Pepperill & Ors [2024] NTCA 10 at [108]- [109].

[11] Chief Executive Officer (Housing) v Pepperill & Ors [2024] NTCA 10 at [110].

[12] Chief Executive Officer (Housing) v Pepperill & Ors [2024] NTCA 10 at [112]- [113].