Edmondson Rural Holdings Pty Ltd v Gordon

Hearing on the papers

1. Both parties requested the Appeal Panel to determine the costs application on the papers. We were satisfied that the issues for determination could be adequately determined in the absence of the parties by considering the written submissions and other material lodged with or provided to the Tribunal (see NCAT Act, s 50(2)).
2. The determination of the matter on the papers was also consistent with the guiding principle in s 36 of the NCAT Act, being to facilitate the just, quick and cheap resolution of the real issues in the proceedings, in that it was the most efficient way of resolving the costs issues, without compromising the requirements of justice.
3. Accordingly, we made an order dispensing with a hearing (NCAT Act, s 50(2)).

Costs application

1. The starting point is that each party is to pay that party's own costs: NCAT Act, s 60(1). The Tribunal may, however, award costs "if it is satisfied that there are special circumstances warranting an award of costs": NCAT Act, s 60(2). Matters to which the Tribunal may have regard when determining whether there are special circumstances warranting an award of costs are set out in s 60(3) of the NCAT Act and include, relevantly: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to 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), …
2. To be "special circumstances," circumstances may be out of the ordinary; they need not be extraordinary or exceptional: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11], applying Cripps v G & M Mawson [2006] NSWCA 84 at [60].
3. The Gordons claimed that there were "special circumstances" within s 60(3)(a) of the NCAT Act in that: 1. ERH conducted the proceedings in a way that unnecessarily disadvantaged them by filing the appeal out of time (s 60(3)(a)); 2. ERH's appeal was grossly misconceived and lacking in substance within s 60(3)(e); 3. ERH had failed to comply with the duty imposed by s 36(3) of the NCAT Act (see NCAT Act, s 60(3)(f)).
4. The Gordons' claim for costs included travelling expenses to and from Sydney for the call over, accommodation whilst in Sydney, breakfast, lunch and dinner costs for the trip to Sydney, the costs of boarding their dogs for three days, the costs of a trip to Orange from their home to pick up photographs from Harvey Norman, the costs of printing the photographs, postage and stationery costs.
5. The Gordons said that they lived in the Central West of New South Wales, between four and five hours' drive from Sydney. They said that they had to attend the call over in person, because of the importance of the appeal to them. Further, they said that they did not have access to telecommunication systems for conferencing.
6. They calculated their total costs of the appeal as being $1,552.90, including the costs of preparing submissions on costs.

Did appellant cause unnecessary disadvantage to the respondents?

1. The Appeal Panel is not satisfied that ERH conducted the proceedings in a way that unnecessarily disadvantaged the Gordons, within s 60(3)(a) of the NCAT Act.
2. The Gordons said that they were unnecessarily disadvantaged by the late filing of the appeal. There is a dispute as to whether the appeal was, in fact, lodged out of time.
3. ERH claims to have received the Tribunal's orders of 16 January 2017 on 31 January 2017. The Gordons state that they received the orders on 18 January 2017 and "find it incredulous" that ERH claims to have received their copy thirteen days later, given they are using the same postal service. Whilst the Appeal Panel has insufficient material before it to make a finding as to why ERH would have received the orders so much later than the Gordons, we note that ERH has a post office box and Ms Edmondson's elderly mother, who lives at the property, may not have collected the mail promptly. In any event, the Appeal Panel accepts ERH's evidence that it received the Tribunal's orders on 31 January 2017.
4. The orders were then amended by the Tribunal member and ERH received notification of the amended orders on 23 February 2017. It then received the Tribunal's reasons for the amendments to the orders on 9 March 2017.
5. An appeal must be lodged, relevantly, "within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later)" (Civil and Administrative Tribunal Rules 2014 (NSW), r 25(4)(c)). ERH's appeal was lodged on 24 February 2017. This is within 28 days of the date ERH received the Tribunal's orders, within one day of the date it received the amended orders and before it received the reasons for the amended orders. The Appeal Panel does not accept that the appeal was lodged out of time.
6. We note that, even if the appeal had been lodged out of time, this does not, of itself, mean that an appellant is conducting proceedings in a way that unnecessarily disadvantages the other party.

Was appeal grossly misconceived and lacking in substance?

1. The Gordons' position was that the appeal ground relating to the refusal to admit video evidence was without substance. They submitted that the director of ERH, who filed the appeal, a Ms Edmondson, was a lawyer. It said that the video evidence which she claimed in the Notice of Appeal was new was available at the time that ERH was required to file its evidence in the proceedings at first instance. It said that Ms Edmondson, as a solicitor, should have been aware of this. It also said that, as a solicitor, Ms Edmondson should have made herself aware of Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111.
2. The Appeal Panel does not accept that ERH's appeal was "grossly misconceived and lacking in substance" within s 60(3)(e) of the NCAT Act, as the Gordons allege, or that s 60(3)(e) applied in the circumstances.
3. The Gordons' suggestion that ERH (or Ms Edmondson) wrongly claimed, in the Notice of Appeal, that the video evidence it wanted to present to the Tribunal was "new", is unfounded. Under the heading in the Notice of Appeal, "Significant new evidence is now available that was not available at the time of the hearing," someone has written on behalf of ERH: "The video evidence was available to be viewed at time of hearing on equipment provided by us." It is clear from the Notice of Appeal that ERH is seeking to submit video evidence on appeal, which was not before the Tribunal below, but that this evidence was tendered and rejected. It is stated in the Notice of Appeal: "We tried to show a video of the fence, but the Tribunal would not admit it." The failure to admit the evidence is one of the grounds of appeal.
4. We accept ERH's submission that Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111, which the Gordons said ERH should have considered prior to filing the appeal, was not relevant. That was a case in which the appellant sought to adduce expert evidence on appeal which she had not obtained at the time of the hearing below. The facts of this case are significantly different: ERH submitted the evidence at first instance, but it was rejected, and sought to present the same evidence to the Appeal Panel. We also note that the Gordons did not explain how it said the principles in Al-Daouk should apply to the present proceedings.
5. ERH claimed that the Tribunal erred in refusing to allow it to show the video of the fence at the hearing, when it allowed the Gordons to admit further evidence at the hearing. This appears to us to be at least arguable. We are not persuaded that the ground of appeal concerning the failure to admit video evidence was misconceived or lacking in substance.
6. In assessing whether the appeal was grossly misconceived or lacking in substance, it is necessary to have regard to the appeal as a whole. ERH had other grounds of appeal, including that the Tribunal did not have regard to one of its submissions (potentially a denial of procedural fairness), that it failed to address certain matters in its reasons (potentially meaning that those reasons were inadequate) and that the Tribunal was not empowered to amend its orders in the way that it did. Again, we are not persuaded that any of these grounds was misconceived or lacking in substance.

Did appellant fail to comply with duty to cooperate?

1. Section 36(3) of the NCAT Act imposes upon parties 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. As indicated above, the "guiding principle" is to facilitate the just, quick and cheap resolution of the real issues in the proceedings (NCAT Act, s 36(1)).
2. The Gordons said, in support of their submission that ERH had failed to comply with the duty in s 36(3), that it had failed to give any explanation for withdrawing the appeal. They also submitted that ERH had failed to comply with the order given in the proceedings below that it pay the Gordons a specified amount in contribution to the cost of the fencing. The Gordons referred to Ms Edmondson's status as an officer of the court and said she therefore had a "higher duty" under s 36(3).
3. We do not accept that s 36(3) of the NCAT Act imposes on Ms Edmondson, when acting in the capacity of director of ERH, any "higher duty" because she is a solicitor, as the Gordons allege. The duty is the same for all parties and their representatives and Ms Edmondson was not acting in the capacity of a solicitor.
4. The Gordons have not persuaded us that ERH failed to comply with the duty under s 36(3) of the NCAT Act to co-operate with the Tribunal to give effect to the guiding principle. ERH did not have any obligation to provide an explanation for withdrawing the appeal. A failure to provide an explanation is not a breach of s 36(3) in the circumstances of this case.
5. The conduct of ERH in relation to the proceedings at first instance (namely, its alleged failure to comply with the Tribunal's orders) could possibly be taken into account on an application for the costs of the appeal, as "costs" is defined to include "the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal" (NCAT Act, s 60(5)(b)). We are of the view that, even if a consideration of conduct of a party at first instance is authorised by s 60, the most relevant conduct to a costs order would generally be the party's conduct of the appeal. However, it is not necessary to decide this, because we are not satisfied that ERH has breached the Tribunal's orders as alleged.
6. The Gordons have not established that ERH failed to comply with the order given in the proceedings below that ERH pay the Gordons a specified amount in contribution to the cost of the fencing. In both the original and amended orders, this amount was payable when the Gordons provided ERH with written notification that payment of the cost of the fencing work had been made "in accordance with Order 6 above." In the original orders, Order 6 provides: "The applicant is to pay the whole cost of the fencing work to the fencing contractor within seven days of completion." In the amended orders, Order 6 provides: "The applicant [the Gordons] is to be responsible for the whole cost of all fencing materials." Presumably the reference in the amended orders to the making of a payment "in accordance with Order 6 above" was intended to be a reference to the making of a payment in accordance with Order 5 above. Order 5 of the amended orders was in the same terms as Order 6 of the original orders.
7. ERH says that it has not received notification as required under the orders. Its position is that the amended orders are invalid. The Gordons have provided the Tribunal with a letter they sent to ERH advising it that the fencing works had been completed and payments made. If the amended orders are invalid, or if the reference to "Order 6" in the amended orders is to be read as a reference to "Order 5," then ERH has a reasonable argument that it has not received notification that payment has been made in accordance with "Order 6." This is because the Gordons have not notified ERH that they have paid the entire cost of the fencing or that they have done this within 7 days of completion of the fencing work.
8. In these circumstances, there appears to be a genuine dispute as to whether ERH has, or has not, complied with the Tribunal's orders. The alleged failure of ERH to comply with the order that it pay the Gordons, in these circumstances, is not a breach of the duty of cooperation in s 36(3) of the NCAT Act. Alternatively, if it is, the conduct is not enough to constitute special circumstances warranting an award of costs.

Are there special circumstances?

1. For the reasons given above, the Appeal Panel is not satisfied that there are special circumstances warranting an award of costs. The usual rule that each party pay its own costs should apply.

Order For the reasons given above, we make the following order: 1. The respondents' costs application 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: 21 July 2017