This decision is concerned with an application by the respondent to an appeal in relation to its costs of the appeal. The proceedings concerned a community land scheme in New South Wales established in 2001 in which relief was sought under provisions of the Community Land Management Act 1989 (NSW) (1989 CLMA). That Act (now repealed) contained provisions for disputes to be determined by an Adjudicator and by the Tribunal (originally, a predecessor Tribunal).
The primary proceedings were commenced in 2021 as an application for orders to be made by an Adjudicator under s 62 of the 1989 CLMA but these proceedings were then referred by the Adjudicator pursuant to s 71B (1) of the 1989 CLMA for determination by the Tribunal. Subsequently, an application was added to the proceedings for the Tribunal to make orders that it alone was empowered to make under ss 80 and 82 of the 1989 CLMA. An adjudicator had no power to make orders under those provisions.
The decision in the primary proceedings was made on 29 January 2024, save as to the question of costs. Subsequently, on 22 April 2024, the Tribunal made an order in respect of the costs of the primary proceedings, namely that the appellant pay one half of the respondent's costs in the primary proceedings on the ordinary basis as agreed or assessed.
The appellant brought an appeal to the Appeal Panel in respect of both of these decisions. It succeeded only in respect of the costs order: Community Association DP 270244 v The Owners-Strata Plan 69205 [2024] NSWCATAP 199. As to the costs order, the Appeal Panel (constituted by M Harrowell, Deputy President, as he then was) ordered that the costs order be set aside and the proceedings be remitted to the Tribunal as originally constituted to consider what, if any, order for costs should be made in accordance with the reasons of the Appeal Panel.
Following the decision of the Appeal Panel, the respondent now applies for an order that the appellant pay 50% of its costs of the appeal. The orders made by the Appeal Panel on 11 October 2024 included directions for the making of any application for costs and for the provision of any evidence and submissions concerning any such application. Senior Member Durack SC was appointed to determine the respondent's application in respect of the costs of the appeal following the former Deputy President's departure from the Tribunal. These reasons should be read in conjunction with the main decision we have just referred to.
In written submissions from the parties each party consented to the costs application being determined on the papers. The Appeal Panel is satisfied that the application can be adequately determined on the papers. Accordingly, an order will be made for the determination of the costs application on the papers.
The respondent seeks the costs order pursuant to the Tribunal's costs power in s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) on the basis that special circumstances warrant the making of the order sought.
The basis for the quantification of 50% of its costs of the appeal sought by the respondent appears from its written submissions in chief dated 25 October 2024 where the following is stated:
9 The Appeal dealt with 8 grounds of Appeal of which 4 grounds relate to the applications under ss 80 and 82.
10 Whilst it is not possible to determine exactly the time spent on each individual point, a presumption can be made that where there were 8 grounds of appeal and 4 of them related to applications under s 80 and 82, then the Respondent should be entitled to costs for, at a minimum 50% of the costs of the Appeal.
Despite an earlier submission that was not developed by the respondent that the Appeal Panel's decision that the Tribunal had no power to order costs in respect of the proceedings referred to it by the Adjudicator did not necessarily extend to costs of an appeal, it is implicit in these submissions in support of a 50% quantification of the costs of the appeal sought by the respondent that the only matters that could be the subject of a costs order by the Appeal Panel were the matters the subject of the applications under ss 80 and 82 of the 1989 CLMA and not the matters that were the subject of the applications for orders to be made by the Adjudicator. The appellant's submissions in reply reinforced this stance because they seek to justify the 50% of the costs of the appeal application on the basis that the challenge on appeal to an order made by the Tribunal under s 82 of the 1989 CLMA invalidating various resolutions of the respondent was the primary source of the appellant's costs.
This was the correct stance for the respondent to take because the Appeal Panel had decided that the Tribunal had no power to make a costs order in relation to the proceedings for orders to be made by the Adjudicator which had been referred to the Tribunal whereas the Tribunal did have power to award costs in relation to the matters that were within the original jurisdiction of the Tribunal, namely the applications for orders under ss 80 and 82 of the 1989 CLMA: see at [323] - [333]. This was the basis of the Appeal Panel's order setting aside the costs order that had been made in the primary proceedings. It follows from the reasoning of the Appeal Panel in the substantive appeal decision, including its conclusion that the costs rules in connection with the appeal are the same as those which applied to the proceedings at first instance (at [335]) that the Appeal Panel has no costs power in relation to the referred matters.
It is not altogether clear from the respondent's costs submissions why it contends that the requirement for special circumstances is satisfied in respect of the ss 80 and 82 aspects of the appeal. Certainly, the respondent was successful on the sole ground of appeal that concerned these aspects, namely Grounds 6, which was directed at four of the Tribunal's orders (Orders 20, 21, 22 and 23). This ground stated:
The Tribunal erred in finding the Tribunal had jurisdiction on the referral of an adjudication application under section 71B of the Community Land Management Act 1989 (NSW) (CLMA) to hear and determine relief sought under sections 80 and 82 of the CLMA, being relief which was not the subject of a separate Strata and Community Schemes application…
However, success does not establish the statutory requirement for special circumstances.
It appears as though the respondent relies solely or, principally, on the complexity and importance of the dispute to the parties. This is because the respondent sets out a passage from the decision of the Appeal Panel in Gelder v The Owners-Strata Plan No 38308 [2021] NSWCATAP 109, which the respondent emphasises "concerned a dispute over valuable property rights in a strata scheme". In doing so, whilst not expressly stated in its submissions, it would appear the respondent seeks to rely upon sections 60 (3) (d) and (g) of the NCAT Act, which are in terms:
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 -
….
(d) the nature and complexity of the proceedings,
….
(g) any other matter that the Tribunal considers relevant.
However, the respondent does not elaborate upon the generality of its submission in this regard and simply submits that "On any view these proceedings were well "out of the ordinary ". Furthermore, this submission does not address the nature of the particular issues with which we are concerned in relation to costs, namely the applications for orders under ss 80 and 82 of the 1989 CLMA. Yet further, the respondent does not put forward any submissions as to why the discretion in s 60 should be exercised in its favour.
The Appeal Panel dealt with Ground 6 at [249] to [287] of its reasons. Whilst, the question addressed was an important question concerning the jurisdiction of the Tribunal, the issues raised, primarily, concerning statutory construction were not of a kind that were unusually complex or out of the ordinary.
We should note that there was no submission by the respondent to the effect that Ground 6 of the appeal was untenable or doomed to failure.
Accordingly, the respondent has not shown that the special circumstances requirement in s 60 has been established.
Hence, it is unnecessary to deal with the question as to the quantification of the costs order. Nevertheless, I consider that the respondent has not shown any proper basis for a quantification at 50% of the costs of the appeal. In this regard, contrary to the respondent's submission, we note that Ground 6 was only one of eight grounds of appeal pursued and this ground occupied a somewhat smallish part of the Appeal Panel's reasons for decision.
[2]
Orders
For the above reasons, the following orders are made:
1. Pursuant to section 50 of the Civil and Administrative Tribunal Act 2013 (NSW), a hearing in respect of the respondent's application concerning the costs of the appeal is dispensed with and the application is to be determined on the papers.
2. The respondent's application in respect of the costs of the appeal is dismissed.
3. Each party is to bear its own costs of the appeal.
[3]
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
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Decision last updated: 18 February 2025