Fitz v Ant Group Carpentry & Building Maintenance Pty Ltd t/as Ant Group Pty Ltd

NCAT Appeal Panel|2025-02-17|Before: Blake AM

Overview

This is an internal appeal from the decision of the Consumer and Commercial Division of the Tribunal made on 31 August 2024 in proceedings under the Fair Trading Act 1987 (NSW) (FT Act) dismissing the application of the appellant, Kylie Fitz (Ms Fitz) against the respondent, Ant Group Carpentry & Building Maintenance Pty Ltd (Ant Group).
On 11 November 2024, the Tribunal constituted by myself dismissed the appeal upon its withdrawal by Ms Fitz.
Ant Group has applied for an order that Ms Fitz pay its costs of the appeal in the gross sum of $6,444.00 (the Ant Group costs application).
I have decided that the Ant Group costs application should be dismissed, and that each of Ms Fitz and Ant Group should pay their costs of the appeal.

The history of the proceedings in the Consumer and Commercial Division

On 17 December 2023, Ms Fitz as the applicant commenced proceedings 2023/00456815 against Ant Group as the respondent by lodging an Application Notice in which she claimed $18,500.00 as a refund of all monies paid for the building works (the Fitz application).
On 31 August 2024, the Tribunal constituted by General Member P Gardner made a decision in relation to the Fitz application (the 31 August 2024 decision) which comprised: 1. orders (the 31 August 2024 orders) including: "1 The application is dismissed on the basis that the Tribunal has no jurisdiction to hear the application, having been made outside of the time required by s 79L." 1. reasons (the 31 August 2024 reasons) including (at [2], [5], [8]-[13]): "… 2. The timeframe for performance of the works is important in this case. In the applicant's evidence (see: [34] - [36] of her statutory declaration) she makes reference to a final attendance by Mr Hughes on 05-Dec-2020. This is: (a) Broadly consistent with the evidence from the respondent, which suggests that the last attendance was on 04-Dec-2020 (see: Annexure A to the Affidavit of Anthony Hughes, which also indicates that the last work the respondent seeks to recover costs for is either 25 or 26-Nov-2020); and (b) Later than the date the applicant has previously instructed her solicitors, as set out in the letter from those solicitors to the respondent's solicitors on 18-Jul-2023 ("We note your client has not completed the work and has not been on site since 17 Nov 2020"). … 5. The Tribunal's jurisdiction to hear and determine consumer claims is set out in Part 6A of the FTA and is subject to a number of limitations, including under s 79L(1)(a), which provides that: "The Tribunal does not have jurisdiction to hear and determine a consumer claim if … [sic]… the cause of action giving rise to the claim first accrued more than 3 years before the date on which the claim is lodged." … 8. The application makes reference to the works performed by the respondent as being defective or incomplete. I consider that this could refer to two causes of action: (a) A claim for breach of contract; (b) A claim that the respondent has failed to comply with one or more consumer guarantees. 9. A cause of action for breach in contract accrues at the date of the breach …. In this case, the date of the alleged breach cannot have been any later than 05-Dec-2020, when the respondent last attended the premises. 10. A cause of action for failure to comply with a consumer guarantee arises at the time the applicant could have become aware of the alleged breach by the respondent …. Referring to the substance of the application, the applicable consumer guarantees appear to be ss 60 and 62 of the Australian Consumer Law (ACL). 11. In respect of the guarantee as to due care and skill (s 60) and given the nature of the issues raised by the applicant, I consider that she ought to have been aware of the faults or defects no later than 05-Dec-2020, being either the date on which Mr Hughes last attended (on her own evidence) or the day after (on Mr Hughes' evidence). 12. In respect of the guarantee as to reasonable time for supply of services (s 62), I consider that the applicant ought to have been aware of all facts necessary to establish this allegation by no later than 05-Dec-2020 for essentially the same reasons. Further, I do not accept that by 05-Dec-2020, the applicant had the impression that Mr Hughes or any other representative of the respondent would continue to attend the property. While there is a statement to this effect in the applicant's statutory declaration, it is not accompanied by text messages, emails or other exchanges which would suggest she understood that the Mr Hughes or another representative of the respondent would return. 13. Accordingly, the application is out of time and must be dismissed. …"

The history of the appeal

On 26 September 2024, Ms Fitz as the Appellant commenced proceedings 2024/00358146 against Ant Group as the Respondent by lodging a Notice of Appeal together with accompanying documents in which she appealed against order 1 of the 31 August 2024 orders and sought an order in her favour for defective and incomplete building works. It is unnecessary to set out the contentions of Ms Fitz in the Notice of Appeal other than her contention that leave to appeal should be granted because she may have suffered a substantial miscarriage of justice because the 31 August 2024 decision was against the weight of evidence. She disputed the finding in the 31 August 2024 reasons at [12] as to her understanding on the basis of the text message of Anthony Hughes (Mr Hughes), the director of Ant Group, sent to her on 5 December 2020 (the 5 December 2020 Hughes text), which was page 49 of her statutory declaration and was in the following terms: "Hi Kylie We removed a pine wardrobe which would work for your kitchen pantry as it won't need extra ply panels. And also free. So when we are back at your place. We will bring it down. Photos of pulled apart ply sheeting for the back & the side panels Cheers Anthony"
On 15 October 2024, Ant Group lodged its Reply to Appeal.
On 16 October 2024, the Tribunal constituted by myself made procedural orders for the hearing of the appeal including by order 1 granting leave to Ant Group to be legally represented, by orders 2, 3 and 4 providing for the documents to be relied on by the parties to be lodged with the Appeal Registry and served upon the other party, and listing the appeal for hearing on 28 January 2025 at 2.15 pm in Parramatta.
On 6 November 2024, Ms Fitz lodged a request to withdraw the appeal.
On 11 November 2024, the Tribunal constituted by myself dismissed the appeal and made procedural orders for the determination of the foreshadowed costs application of Ant Group providing by order 3 for the lodgement and service of the costs application, by orders 3, 4 and 5 for the lodgement and service of evidence and submissions by the parties, and by order 6 requiring the question of whether a hearing may be dispensed with to be addressed by the parties (the 11 November 2024 orders).
On 25 November 2024, Ant Group lodged its Submissions as to Costs dated 25 November 2024 which included the Ant Group costs application (the 25 November 2024 Ant Group costs submissions).
On 12 December 2024, Ms Fitz lodged her undated Submissions as to Costs (the 12 December 2024 Fitz costs submissions).
On 16 December 2024, the Tribunal constituted by myself at the request of Ms Fitz made procedural orders extending the time for compliance with orders 4 and 5 of the 11 November 2024 orders.
On 16 December 2024, Ant Group lodged its Submissions as to Costs dated 16 December 2024 (the 16 December 2024 Ant Group costs submissions in reply).

The issues for determination

The following issues arise for determination: 1. issue 1: whether a hearing of the Ant Group costs application should be dispensed with; 2. issue 2: the Ant Group costs application.

Issue 1: whether a hearing of the Ant Group costs application should be dispensed with

Each of Ant Group and Ms Fitz consents to a hearing of the Ant Group costs application being dispensed with.
I am satisfied that that the issues for determination in relation to the Ant Group costs application can be adequately determined in the absence of the parties by considering their evidence and written submissions. Accordingly, I have decided pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to make an order dispensing with a hearing in relation to the Ant Group costs application.

Introduction

The Ant Group costs application is pursuant to s 60(2) of the NCAT Act. The determination of this application may involve answering the following two questions: 1. whether there are special circumstances warranting an award of costs in favour of Ant Group; 2. if so, whether the discretion should be exercised to award costs; 3. if so, whether a gross sum costs order should be made.
Before dealing with this issue, it is appropriate to set out the applicable provisions of the NCAT Act and legal principles, and to summarise the submissions of the parties.

The applicable provisions of the NCAT Act

Part 4 Division 5 (ss 56-63) contains provisions dealing with participation in proceedings in the Tribunal. Section 60 deals with costs, and 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) If costs are to be awarded by the Tribunal, the Tribunal may - (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section - costs includes - (a) … (b) 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.

"Special circumstances" in s 60(2) of the NCAT Act

"Special circumstances" in s 60(2) of the NCAT Act are circumstances that are out of the ordinary; they do not have to be extraordinary or exceptional circumstances: CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32].
In considering whether special circumstances exist for the purposes of s 60(2) of the NCAT Act: 1. each case will depend upon on its own particular facts and circumstances: Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152 at [27]; 2. mere success (or failure) of an application does not give rise to special circumstances: The Owners - Strata Plan 5319 v Price [2020] NSWCATAP 245 at [46].
As to the factor in s 60(3)(c) of the NCAT Act, in Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135 (Zucker) at [44] the Appeal Panel made the following observations: "[44] A finding that a claim is "not proved on the balance of probabilities" is not the same as a finding that a claim is "not tenable in fact or law". They are different concepts. The expression "no tenable basis in fact or law" relates to the common law tests developed and applied in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. For a claim to have no tenable basis in fact or law it must be so obviously untenable that it cannot possibly succeed: General Steel at 130. "Manifestly groundless" or "clearly untenable" are equivalent expressions. In our view, for the purpose of s 60(3)(c), it matters not whether a conclusion that a claim has no tenable basis in fact or law is reached in connection with an application for summary dismissal or after a full hearing on the merits."
As to the factor in s 60(3)(e) of the NCAT Act, in BDK v Department of Education and Communities [2015] NSWCATAP 129 (BDK) at [62]-[66], in which the appellant was self-represented as she had been in the decision below, the Appeal Panel said in relation to the identical expression in s 55(1)(b) of the NCAT Act: "[62] It will be seen that this Tribunal's power is somewhat differently expressed. The Tribunal's power refers not only applies to proceedings that are "frivolous" or "vexatious", but then applies to proceedings that are "misconceived" or "lacking in substance". Section 55(1)(b) does not have a generic catch-all category of "abuse of process" to pick up conduct in relation to the issuance and pursuit of proceedings that might, arguably, fall outside the four specific categories set out there. [63] In Alchin v Rail Corporation NSW [2012] NSWADT 142 Judicial Member Wright SC (as he then was) examined the meaning of the predecessor provision to s 55(1)(b) - s 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1977. As to the meaning of "misconceived" and "lacking in substance", he said: 25 The expressions used in s 92(1)(a)(i) of the ADA, namely "misconceived" and "lacking in substance" are found not only in the ADA but also in s 73(5)(g) of the ADT Act and similar legislation in other states. With respect to a similar provision found in the Equal Opportunity Act 1984 (Vic), Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [14] said: "misconceived" and "lacking in substance" have not, so far as I am aware, been used in this context before though each expression is commonly used by lawyers, the one connoting a misunderstanding of legal principle and the other connoting an untenable proposition of law or fact. If one may discern, in these provisions, an attempt to express the powers of tribunals in non-technical language, then "misconceived" would represent a claim which did "not disclose a cause of action" …, whereas "lacking in substance" might be seen to represent a claim where the defendant could obtain summary judgment … 26 This approach of construing "misconceived" as including a misunderstanding of legal principle and "lacking in substance" as encompassing an untenable proposition of fact or law has been applied by the Tribunal in many decisions including, for example, Keene v Director-General, Dept of Justice and Attorney-General [2011] NSWADT 59 at [14], McDonald v Central Coast Community Legal Centre [2008] NSWADT 96 at [22] and Stanborough v Woolworths Ltd [2005] NSWADT 203 at [50]. [64] In the present case, the Tribunal referred to the frequently-cited explanation of this term by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491: 1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. 2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise. 3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless. [65] It will be seen that Roden J's first category covers conduct that falls within the meaning of "frivolous", while his third category embraces the kind of cases to which the expressions "misconceived" and "lacking in substance" are directed (or, in the case of the UCPR categories, cases not disclosing a reasonable cause of action). [66] In our view a reasonably broad connotation should be given to the meaning of the four categories of conduct identified by s 55(1)(b). The intent of the provision, as we see it, is to seek to give the Tribunal a broad power to deal with abuses of its processes, and for them to be interpreted and applied in a power which captures any kind of abuse of process, that can reasonably be seen to fall within their compass. While "misconceived" and "lacking in substance" may be seen as relatively specific terms, we think a flexible, purposive interpretation can be adopted in determining whether proceedings are "frivolous" or "vexatious", conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings."

The exercise of the discretion in s 60(2) of the NCAT Act

Where special circumstances are found to exist, the Tribunal has a discretion to exercise in deciding what, if any, order should be made. Relevant to the exercise of that discretion are those facts upon which the finding of special circumstances was based. However, those findings do not constitute the whole of the relevant matters to be considered in deciding what, if any, order for costs should be made. Rather, the principles applicable to awarding costs generally must also be taken into account: Brodyn Pty Ltd v Owners Corporation Strata Plan 73019 (No 2) [2016] NSWCATAP 224 at [24].
The discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48].
In The Owners - Strata Plan No. 47027 v Peter Clisdell Pty Ltd (No 2) [2018] NSWCATAP 46 at [44] the Appeal Panel decided it would not have exercised the discretion under s 60(2) of the NCAT for reasons which included that the respondent was not legally represented at the hearing of the appeal.

Proceedings without a hearing on the merits

In New Island Developments Pty Ltd v New Island Investments One Pty Ltd (No 2) [2024] NSWSC 454 (New Island Developments) at [18]-[20], Rees J recently explained the principles governing an application for costs in a case which has been resolved without a hearing on the merits: [18] In Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624-625, McHugh J stated: "When there has been no hearing on the merits … a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits … The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. … Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. … If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings." [19] In One.Tel Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548, Burchett J also observed at [6]: "… it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court's discretion otherwise than by an award of costs to the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs." [20] One.Tel was followed in Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302, where Davies AJA (Mason P and Meagher JA agreeing) noted that a judge may award costs where the matter does not proceed to judgment "generally … because the judge is satisfied that one party has had a substantial victory and the other a substantial loss, or that there has been a marked difference in the reasonableness of the actions taken by the parties, so that one party should be rewarded for its reasonable actions and the other should suffer a detriment in costs": at [5]. See likewise Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84 at [26] to [30] (per Payne JA, Basten and Meagher JJA agreeing)."
The citation of Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622 at 624-625; [1997] HCA 6 (Lai Qin) in New Island Developments at [18] omits the following sentence immediately following the cited words in the second paragraph: "In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action."
In Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84 (Nichols): 1. Payne JA (with Meagher JA at [13] agreeing) at [25] set out with approval the full passage in Lai Qin at 624-625 and at [30] observed: "If both parties to a proceeding which has been settled without a hearing on the merits have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings." 1. Basten JA at [8]-[9] observed: "… although it is possible to make an order for costs against one party if it can be shown that it has invited the litigation by its unreasonable behaviour, or has unreasonably pursued the litigation, such an order should only be made where that judgment is manifest by reference to known circumstances, not in dispute between the parties. If the question cannot be answered without reviewing large swathes of evidence and resolving, on a tentative basis, disputed questions of fact, the task should not be embarked upon. … once it is clear that there is a real dispute as to a significant fact in issue in the proceedings, it is inappropriate to determine that matter, other than in making an interlocutory ruling, by accepting one party's case without permitting the other party an opportunity to challenge the opposing party's witnesses."
The observations in Nichols at [8]-[9], [30] have very recently been applied in the context of the question under r 42.20(1) of Uniform Procedure Rules 2005 (NSW) whether there are grounds for the Court to "order otherwise" than that the plaintiff pay the defendant's costs of the proceedings in circumstances where the Court makes an order for the dismissal of proceedings: Balout v Bella Ikea Cronulla Pty Ltd (No 2) [2024] NSWSC 1173 at [51]-[52], [58] (Rees J).
The principles in Lai Qin and One.Tel Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270 (ONE.TEL) have been applied in the Tribunal: see, for example, Knox v Bollen; Bollen v Knox [2018] NSWCATAP 106 at [45]-[48]. While withdrawal of proceedings in the Tribunal whether at first instance or on appeal, may in some circumstances, constitute sufficient "special circumstances" to justify a costs order, the mere fact that proceedings are withdrawn is not, of itself, a sufficient "special circumstance" to justify a costs order: MacDermott v Wang [2022] NSWCATCD 71 at [45(4)].

Gross sum costs order

In 203 Castlereagh Street Pty Ltd v Skybloo Holdings Pty Ltd [2017] NSWCATAP 29 at [39]-[40] and [45] the Appeal Panel set out the following principles concerning when the Tribunal might make a gross sum costs order: "[39] The principles concerning when a Court might make a gross sum costs order are set out in a number of recent Court of Appeal decisions, including: Hamod v State of New South Wales [2011] NSWCA 375 at [813]ff; eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (No 2) [2015] NSWCA 422 at [8]ff and [30]; and Kostov v Zhang (No 2) [2016] NSWCA 279 at [19]ff. [40] These principles, relevantly adapted to the circumstances of the Tribunal, include: (1) A fixed sum costs order involves a departure from the usual process by which costs are assessed in accordance with the statutory procedures now relevantly found in the Legal Profession Uniform Law Application Act 2014 (NSW) (especially Pt 7 dealing with "ordered costs") and the Legal Profession Uniform Law (NSW), eInduct Systems at [8]; (2) A fixed sum costs order may be appropriate where: (a) the sum of costs in question is relatively modest, eInduct Systems at [30]; (b) a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment, Hamod at [813], [816] and [817], eInduct Systems at [30]; (c) the assessment of costs would be protracted and expensive, Hamod at [813] and [817]; and/or (d) the case was complex, Hamod at [815]-[817]; (3) Sections 36(1) and (4) of the NCAT Act (which can be seen as equivalent to those in ss 56(1), 57(1)(d) and 60 of the CP Act) suggest that the following factors merit particular consideration: (a) the relative responsibility of the parties for the costs incurred; (b) the degree of any disproportion between the issue litigated and the costs claimed; (c) the complexity of the proceedings in relation to their cost; and (d) the capacity of the unsuccessful party to satisfy any costs [liability], Hamod at [816], Kostov at [22]. (4) An order for fixed sum costs should be based on an informed assessment of the actual costs, having regard to the information before the Tribunal. Furthermore, the approach taken to estimate the costs must be logical, fair and reasonable. This may involve an impressionistic discount of the costs actually incurred in order to take into account the contingencies that would be relevant in any formal costs assessment, Hamod at [820]; (5) The power to make a fixed sum costs order should only be exercised when the Tribunal considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available, Hamod at [813], Kostov at [23]; … [45] … Tribunal Members should not generally be encouraged to carry out the work of costs assessors by making fixed sum costs orders. The circumstances most likely to arise in the Tribunal where it might be appropriate for the Tribunal itself to assess costs will usually be where the costs are very modest and the assessment is simple. This might be the case, for example, where the parties are self-represented and not entitled to recover work done in preparing their case, and the only recoverable costs are the filing fee and other small, non-contentious out of pocket expenses, see generally: Gino Dal Pont, Law of Costs (3rd ed, 2013) at 171-174."
In Anderson v The Owners - Strata Plan No. 61034 (No 2) [2019] NSWCATAP 108 at [28] the Appeal Panel approved the following principles concerning when the Tribunal might make a gross sum costs order: "[28] Appeal Panels have recently considered lump sum costs orders in Islam v Metricon Homes Pty Ltd [2018] NSWCATAP 116 and in Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 13. Reference was made to the principles referred to by the NSW Court of Appeal in Bechara trading as Bechara and Company v Bates [2016] NSWCA 294, which stated, at [12] to [15]: '12. The power to award a lump-sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at 742-723 [21]-[22]; Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 123. 13. The power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Hamod v New South Wales [2011] NSWCA 375 at [818] per Beazley JA (Giles and Whealy JJA agreeing). 14. A "broad brush" approach is appropriate. To require the same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; [1999] FCA 673 at 5 [16]; Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [7]. 15. The courts have typically applied a discount in assessing costs on a gross sum basis: Hamod v New South Wales at [814].'"
Courts typically have applied discounts when making a fixed sum costs order of between 10% and 30%: Ritchie's Uniform Civil Procedure NSW, Civil Procedure Act 2005, [s 98.65.1].

The 25 November 2024 Ant Group costs submissions

In the 25 November 2024 Ant Group costs submissions, Ant Group has relevantly made the following submissions: 1. special circumstances justifying an order that Ms Fitz pay its costs of the appeal arise in the following context: 1. the issue determined at first instance was limited to a fairly narrow question of fact and law - were the proceedings commenced within 3 years of Ms Fitz's cause of action accruing for the purposes of s 79L(a) of the FT Act. Despite the confined nature of the issue considered and determined at first instance, the appeal sought to agitate, primarily if not entirely, issues entirely unrelated to the question of whether the first instance proceedings were commenced within time; 2. the appeal lacked substance. Even making a reasonable allowance for the fact that Ms Fitz was not legally represented and is not a legal practitioner, the Notice of Appeal, including the "Grounds of appeal", makes no attempt to identify any error in the decision of the General Member. In the absence of any identified error, the appeal as conceived by Ms Fitz was doomed to fail and it has been put to otherwise unnecessary expense by reason of its need to retain legal representation and obtain advice in relation to the appeal; 3. given the lack of merit in the appeal, the filing and subsequent pursuit by Ms Fitz of the appeal for around 6 weeks achieved nothing other than the unnecessary prolongation of the proceedings and the necessity for it to incur legal costs which could otherwise have been avoided; 1. these matters merit the making of an order that the appellant pay its costs of the appeal; 2. the Tribunal should further exercise its discretion under s 60(4) of the NCAT Act to fix a gross sum of costs to be paid by Ms Fitz, thus avoiding the unnecessary expenditure of resources on an assessment of costs. Its total costs of the appeal are $7,581.01 inclusive of GST. It is appropriate to apply a discount to that amount for the purpose of fixing a gross sum. A discount of 15% is appropriate in the present instance. Accordingly, its costs should be fixed in the sum of $6,443.86, otherwise rounded to $6,444.00.

The 12 December 2024 Fitz costs submissions

in the 12 December 2024 Fitz costs submissions, Ms Fitz has opposed the Ant Group costs application on various grounds. It is unnecessary to summarise her submissions.

The 16 December 2024 Ant Group costs submissions in reply

In the 16 December 2024 Ant Group costs submissions in reply, Ant Group has replied to the 12 December 2024 Fitz costs submissions. It is unnecessary to summarise its submissions.

Whether there are special circumstances warranting an award of costs in favour of Ant Group

I am not satisfied that there are special circumstances warranting an award of costs in respect of the appeal in favour of Ant Group within s 60(2) of the NCAT Act for the following reasons: 1. while Ant Group has not specifically identified which if any of the factors in s 60(3) of the NCAT Act on which it relies, I have understood the basis of its contention of special circumstances is on grounds that are the same or similar to those specified in s 60(3)(b), (c) and (e); 2. I do not accept that Ms Fitz unreasonably prolonged the time taken to complete the appeal. She gave notice of her intention to withdraw the appeal six weeks after its commencement; 3. having regard to the principles in Zucker at [44] and BDK at [62]-[66], Ant Group has not established that the appeal had no tenable basis in fact or law, or frivolous or vexatious or otherwise misconceived or lacking in substance. In particular, it has not established that the General Member in the light of the 5 December 2020 Hughes text did not make an erroneous factual finding in the 31 August 2024 reasons at [12] and that there was no "significant possibility" or no "chance which was fairly open" that a different and more favourable result would have been achieved within the principles in Collins v Urban [2014] NSWCATAP 17 at [76] if the General Member had found that Ms Fitz had understood that the Mr Hughes or another representative of Ant Group would return to the property to undertake building works.
It follows that the Ant Group costs application should be dismissed, and an order should be made that Ms Fitz and Ant Group are to pay their costs of the appeal to give effect to the position in s 60(1) of the NCAT Act.

If so, whether the discretion should be exercised to award costs

As I have not been satisfied of the condition in s 60(2) of the NCAT Act that there are special circumstances warranting an award of costs of the appeal in favour of Ant Group, this question does not arise for determination. If I had found that there were special circumstances, I would not have exercised the discretion to award costs of the appeal in favour of Ant Group for the following reasons: 1. having regard to the principles in Lai Qin at 624-625 and Nichols at [30], I am not satisfied that Ms Fitz either acted unreasonably in commencing and maintaining the appeal until 11 November 2024, or even though she acted reasonably in so doing she was almost certain to have failed if the appeal had been determined on the merits; 2. having regard to the principles in ONE.TEL at [6], I am not satisfied that Ms Fitz effectively surrendered to Ant Group in withdrawing to the appeal; 3. I would not have awarded costs prior to 16 October 2024 in favour of Ant Group as it failed to make, and failed to provide any explanation for its failure to make, an application it have leave to be legally represented prior to that date. There is no evidence that any person on its behalf gave notice to Ms Fitz that such an application would be made at the call over on 16 October 2024. It was unfair to Ms Fitz that she should exposed to an order for costs for legal services provided on and prior to 16 October 2024 when it had not obtained an order that it have leave to be legally represented and had not given notice to them of its proposed application that it be legally represented. I accept that the making of an order for leave for a party to be represented by an Australian legal practitioner pursuant to s 45(1)(b)(ii) of the NCAT Act is not a precondition to the making of a costs order in favour of that party as held in N & T Buildings Pty Ltd v Ball [2018] NSWCATAP 83 at [11]-[12]. However, the making of such an order may be taken into account in the exercise of the discretion to award costs. In these circumstances, of relevance are the observations of the Fair Work Commission Full Bench (Hatcher VP, Dean DP, Commissioner Wilson) in Fitzgerald v Woolworths Ltd [2017] FWCFB 2797; (2017) 270 IR 128 at [57] in relation to the failure of the respondent to have obtained leave for legal representation under s 596 of the Fair Work Act 2009 (Cth) (which is analogous to s 45 of the NCAT Act): "[57] … Mr Fitzgerald's main complaint about Woolworths' representation was that … he could not reasonably have anticipated that he would subsequently face a costs application that included the fees charged for Mr Bennett's attendance at the hearing. That point has a degree of substance, notwithstanding that Woolworths had in earlier correspondence placed Mr Fitzgerald on notice that he might face a costs application should he proceed with his application. …" 1. Ms Fitz was self-represented.

If so, whether a gross sum costs order should be made

In view of my decision that the Ant Group costs application should be dismissed, this question does not arise for determination. If I had decided to award costs of the appeal in favour of Ant Group, I would not have made a gross sum order in favour of Ant Group in the absence of evidence as to the legal services provided such as an itemised bill of costs and the reasonable of the amount charged to Ant Group.

Orders

I make the following orders: 1. A hearing of the costs application of the respondent is dispensed with. 2. The costs application of the respondent is dismissed. 3. Each of the appellant and the respondent is to pay their costs of the appeal.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 17 February 2025

Uniform Procedure Rules 2005(NSW)

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