De Tarle v Chief Commissioner of State Revenue

NCAT Administrative and Equal Opportunity|2022-08-19

REASONS FOR DECISION

This is an application for costs made by the applicant in relation to a decision made by a differently constituted Tribunal in De Tarle v Chief Commissioner of State Revenue [2021] NSWCATAD 270. Due to the unavailability of the Senior Member who determined the substantive proceedings, the Tribunal has been reconstituted to deal with this costs application.
In March 2017, the applicant purchased a property and became liable to pay duty by 9 June 2017 under the Duties Act 1997. The applicant did not pay the duty in full, and the respondent assessed the applicant as liable to pay interest. The substantive proceedings related a review by the Tribunal of the respondent's decision to assess the applicant for interest. On 17 September 2021 the Tribunal remitted the assessment to the respondent for determination of the interest from 1 July 2017.
The applicant made the application for costs on 6 October 2021. On 11 July 2022 the Tribunal made directions for exchange of submissions and documents for the application for costs to be determined. The directions also allowed for submissions as to whether the parties consented to a hearing being dispensed with in relation to the costs application.
The applicant filed written submissions and documents on 18 July 2022. The respondent filed written submissions and documents in response on 1 August 2022 and the applicant filed submissions in reply on 8 August 2022. I have read and considered the written submissions of both parties.
Neither party sought an oral hearing on the issue of costs. I am satisfied that it is appropriate to deal with the costs application on the papers as a hearing would amount to further unnecessary costs to the parties. Accordingly, I have made an order dispensing with a hearing.

Costs pursuant to s 60 of the NCAT Act

The applicant was self-represented in the proceedings and is not a legal practitioner and has not incurred professional legal costs. The respondent submits that s 60 of the NCAT Act relates to costs actually incurred in the conduct of litigation. It does not include compensation for time spent by a litigant in preparing and conducting his case and that the applicant has not identified any costs that he has incurred.
In Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 at [110], the Appeal Panel stated: The Hammonds have also claimed costs for the time spent in preparation. Mr Hammond conceded that neither he nor Ms Hammond was a legal practitioner. In accordance with the view we have taken of the meaning of "costs" in s 60 of the Act, we do not accept that the Hammonds' time spent in preparation is recoverable. Further, even if we were wrong in this conclusion, we would not exercise our discretion to award $1,646.00 (being $2,268.00 less printing of $622.00 as claimed by the Hammonds in their Amended Schedule A) for time spent in the hearing and in preparation, in addition to an award of $456.00, as $1,646.00 is not proportionate to, and is significantly greater than, the amount originally ordered to be paid by Ozzy, namely $1,447.80.
Pursuant to s 60 and in accordance with the reasoning set out in Hammond, the applicant would not be entitled to recover costs for time which he has spent on preparing and appearing in the matter. However, he would not be prevented from recovering disbursements. In Hammond the appellant had also claimed $396.00 for the fee paid when the notice of appeal was lodged and the cost of printing or photocopying in the order of 300 pages of material for use in the appeal. The Hammonds claimed $622.00. The Appeal Panel found that it did not appear that the appellants had actually paid those sums and allowed a lump sum $60.00 for copying and printing. The Appeal Panel made a total costs order in favour of the appellants for $456.00.
In this matter the applicant has not quantified or provided details of the costs which he has incurred that fall within the scope of the costs that can be ordered under s 60. This is not a matter, where like legal costs, costs can be awarded on the basis as agreed or assessed.
The applicant has made submissions that the respondent provided documents electronically and that he does not have access to efficient printers and computer monitors like the respondent, however, many of those documents referred to were subsequently provided in hardcopy and there is no supporting evidence about any costs which the applicant incurred in in printing. There is no supporting evidence of the actual costs which the applicant is seeking.
In any case, I am not satisfied that the applicant has established special circumstances which warrant the making of a costs order for the following reasons.
Pursuant to s 60(3) of the NCAT Act, 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.
The applicant submits that they should not have been required to file an application in the first place. The applicant did not refuse to pay stamp duty, only the incorrectly charged interest and he had attempted to resolve the matter prior to making the application. The applicant submits that the respondent resisted the application and conducted proceedings in circumstances where it was apparent there had been issues with their management of the stamp duty matter leading to the incorrect charge of interest. The applicant submits that this was simple matter, and it was open to the respondent to resolve it before the start of proceedings.
The respondent submits that the respondent's conduct prior to the commencement of the proceedings is not relevant to determination of costs, but even if it was, the respondent did seek to resolve the dispute regarding interest prior to the hearing. The respondent submits that on multiple occasions throughout 2017 and 2018 offers were made by the respondent to allow the applicant to pay the outstanding duty by instalments which, if complied with, would have resulted in interest being remitted in full following payment of the duty. The applicant did not comply with the terms of the payment plan, or the consequential extensions offered, and made none of the required monthly payments in full. The duty was not paid by the applicant until March 2020.
I am not satisfied that the conduct of the respondent prior to the commencement of the proceedings amounts to a special circumstance in these proceedings. There was a dispute about the payment of interest. While part of the calculation of interest from 1 July 2017 was remitted in accordance with the Tribunal decision, it was not the amount sought by the applicant. The applicant was seeking from 6 September 2017 and on that basis the applicant was not wholly successful in the review proceedings.
The applicant also submits that the respondent is subject to the NSW Model Litigant Policy and that it has breached that policy and that amounts to a special circumstance. The applicant has asserted that the respondent prolonged proceedings in the conduct of this case. However, the applicant has not identified any part or parts of the Model Litigant Policy that the respondent has failed to comply with and has not identified what specific conduct on the part of the respondent is said to have constituted a breach of the Model Litigant Policy. I do not find on the submissions and documents before me that the applicant has breached the model litigant policy or that the respondents conduct in that regard amounts to a special circumstance.
The applicant also submits that the respondent is well resourced and has the benefit of legal resources available to them and that they unreasonably prolonged proceedings and made it difficult for the applicant. The applicant raised that the respondent served their material by electronic means without seeking leave from the Tribunal and in circumstances where the applicant did not have access to printers and large or duplicate computer monitors. The applicant submits that the documents required under s 58 of the Administrative Decisions Review Act 1997 (ADR Act) were received in three stages, the initial documents, and two further supplementary bundles. They were filed partly electronically and then received in hardcopy on 18 May 2021, 8 June 2021 and on or about 15 July 2021. This necessitated an extension of time to be granted on two occasions. The applicant submits that there were omissions of certain events and emails from the section 58 documents which were central to the issues in dispute. The applicant also raises issues in relation discrepancies to the index in the court book and that the final submissions of the respondent were filed and served after the due date of 4 August 2021.
Having considered those submissions of the applicant, I am not satisfied they are matters that are out of the ordinary or amount to special circumstances. The respondent denies not having provided all relevant documents during the proceedings pursuant to his obligation under s 58 of the ADR Act. The respondent provided documents pursuant to s 58 of the ADR Act on 17 May 2021. In circumstances which involve large volumes of documents, the fact that the respondent did not locate all the relevant documents within its searches immediately or produced further documents it discovered within its possession later, is not a circumstance that is out of the ordinary and a special circumstance for the purposes of s 60 of the NCAT Act.
The applicant was in receipt of all documents produced by the respondent in advance of the hearing and had an opportunity to consider those documents prior to preparing his evidence and submissions in chief and in reply. The production of the supplementary s 58 documents and the response to the applicant's request for documents did not prolong the proceedings. While an extension of time for the applicant to provide his submissions and evidence was made at the directions hearing on 22 June 2021, the matter was progressed, and the proceedings were listed for hearing on 10 September 2021 and were ultimately heard on that date. The respondent acknowledges that the respondent did not comply with the orders made by the Tribunal on 22 June 2021 to file and serve submissions by 4 August 2021. The respondent filed and served his submissions on 13 August 2021. The respondent submits that the delay in preparing the submissions was due to a delay in receiving the applicant's submissions, which were not received until 20 July 2021 and because the respondent was awaiting production of documents under summons. The respondent was granted a consequential extension of time to provide reply submissions and that did not delay the final hearing. Extensions of time, especially ones that do not affect the final hearing date are not matters out of the ordinary and have not caused disadvantage to the applicant in these proceedings.
The respondent has a reasonable explanation for the delay in compliance and the failure to comply with the direction of the Tribunal was minimal and did not affect the time taken to complete the proceedings or affect the final hearing dates or the applicant's capacity to prepare his submissions and evidence or for final hearing. The non-compliance does not amount to a special circumstance warranting a departure from the ordinary rule that each party bear their own costs
In relation to the respondent serving documents electronically and not in hard copy, the applicant acknowledges that the s 58 documents were served in hard copy as well as electronically. In those circumstances I find no disadvantage caused to the applicant. Further a small anomaly in the index to the court book does not amount to special circumstances.
The applicant submits that the applicant delayed in complying with the final orders of the Tribunal. He submits that on 6 October 2021, the applicant contacted the respondent to ascertain the status of the new notice of assessment as he had not yet been notified of the new decision. It transpired the notice had been issued on 28 September 2021 but had not been sent to the applicant. The applicant had been seeking to register the purchase of his home with NSW Land Registry Services as soon as possible. Subsequently a time was arranged for the applicant to attend the office of the respondent on 13 October 2021 to pick up his stamped documents. The respondent failed to attend the meeting. The applicant filed a new application on 1 November 2021 so that he could obtain his stamped documents. That application was withdrawn when the respondent sent the stamped documents by express post on 15 November 2021.
The respondent submits that the respondent issued a reassessment of the interest owed by the applicant in accordance with the Tribunal decision. That reassessment was served on the applicant on 6 October 2021. The respondent submits that pursuant to s 102 of the Taxation Administration Act 1996, the respondent is to take any action that is necessary to give effect to a decision on review, including amending any relevant assessment, within 60 days after the decision.
I am not satisfied that what happened after the proceedings constitutes special circumstances in relation to costs of these proceedings. The respondent did provide an assessment, even if it was not as quickly as the applicant had wanted. In relation to the application for review lodged in the Tribunal by the applicant on 1 November 2021, that does not form part of these review proceedings and is not relevant to this costs application.
Having considered the submissions and documents provided by the parties, I am not satisfied, even if the applicant had demonstrated costs incurred, that the applicant has established any special circumstances that warrant a departure from the usual order that each party bear their own costs.

ORDERS

Accordingly, the Tribunal makes the following orders: 1. An oral hearing on the issue of costs is dispensed with under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The application for costs is dismissed.

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: 19 August 2022

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