Five D Pty Ltd v The Owners-Strata Plan No. 79642

Consideration

1. The parties were directed to file submissions as to costs.
2. The principal bases on which the respondent submits that special circumstances are established are: 1. the appellant's failure to comply with directions of the Appeal Panel prior to the hearing on 10 September 2018. The respondent submits that this caused it unnecessary disadvantage: s 60(3)(a); 2. the appellant's appeal was hopeless and misconceived: s 60(3)(c).
3. To this can be added the appellant's failure to appear at the appeal hearing.
4. The appellant filed submission on 8 October 2018. Relevantly, the submission simply states "We are against an Order for costs for our company given the history of the matter together with our belief, respectfully, that we have provided sufficient notice and evidence as outlined in correspondence".
5. We shall consider each matter in turn.

Failure to comply with directions

1. We accept that the failure to comply with directions, in particular directions as to evidence and submissions, can cause the other party an unnecessary disadvantage.
2. We consider that this matter somewhat favours a finding of special circumstances.

Failure to appear at the hearing

1. The non-appearance of the appellant at the appeal and their failure to advise the Tribunal of this, while discourteous, of itself may not amount to special circumstances: see Reskella v Xiang [2015] NSWCATAP 23; Cripps v G & M Mawson [2006] NSWCA 84. Whether special circumstances are established will depend on the circumstances of the case and may include the reason for the defaulting party's non-attendance and whether the non-defaulting party had the right to be legally represented: Brunsprop.
2. In the absence of any meaningful submissions of the appellant, and thus no explanation for its failure to appear at the hearing, we are satisfied that this matter favours a finding of special circumstances.

Appeal hopeless

1. The decision appealed from was a decision of a Senior Member of the Tribunal sitting in the Consumer and Commercial Division. The parties agreed that the existing dividing fence was not sufficient in terms of the Dividing Fences Act 1991 (NSW). The appellant proposed that a chain wire fence with barbed wire be erected to keep out vagrants. The respondent proposed a pine fence. After noting that the appellant had not tendered evidence to support the proposition that a chain wire fence with barbed wire enforcement was permissible under current local government laws, the Tribunal concluded: 23. In the absence of any common ground about the type of fence the Tribunal must impose its decision. The applicant (a company) has brought these proceedings and as such has the onus of proof to satisfy the Tribunal that it is entitled to the orders it seeks. I am not satisfied that the chain wire fence with three barbed wire rows is "of a standard no greater than the standard for a sufficient (emphasis added) dividing fence. The Tribunal is satisfied that the fence proposed by the respondent is in keeping with the fence that has been in situ dividing the properties for decades, and is sufficient for the purpose of the Act. 24. The Respondent clearly favours a timber fence as being predominate in the locality and that is the type of fence that the respondent is required to contribute to as a sufficient dividing fence.
2. In summary, the Tribunal rejected the appellant's submission and accepted the respondent's.
3. An internal appeal may be made as of right on any question of law, or with the leave of the Appeal Panel on any other grounds: NCAT Act, s 80(2).
4. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel considered the requirements for establishing an "error of law" giving rise to an appeal as of right. That decision also stated at [12] that in circumstances where the appellant is not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally.
5. We have done so, and cannot identify any error of law in the Notice of Appeal.
6. As to leave to appeal, cl 12(1) of Sch 4 of the NCAT Act states that an Appeal Panel may grant leave only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:

• the decision of the Tribunal under appeal was not fair and equitable, or
• the decision of the Tribunal under appeal was against the weight of evidence; or
• significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. The appellant's grounds of appeal are set out in Annexure B to its Notice of Appeal. Most of this document simply restates the evidence before the Tribunal, the findings of the Tribunal or repeats what occurred at the hearing. Only alleged two errors of the Tribunal are explicitly raised by the appellant, namely that:

• the reasons for decision did not "distinguish" that the fence the subject of the application was a boundary fence "shared by a car park", whereas the other two fences referred to in the reasons divided adjoining properties; and
• while the appellant had submitted at the hearing that a development application was required to erect a fence on the boundary line, no finding was made by the Tribunal in relation to this.

1. We also note that the Notice of Appeal refers to evidence that was not before the Tribunal. As there was no explanation by the appellant we are unable to determine whether the additional evidence the appellant now wishes to rely on was (or was not) reasonably available at the time of the Tribunal hearing: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 17.
2. Having examined the Notice of Appeal and the attached grounds of appeal, we are not satisfied that any ground involved an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
3. Given these matters, we consider that the prospects of leave being granted, and the appellant having success on its appeal, if not hopeless, were extremely low.

Conclusion

1. When these three matters are considered cumulatively, we are satisfied that the respondent has established special circumstances as warranting an award of costs.

Fixed costs

1. The respondent asks that the appellant pay its costs in the sum of $232.50.
2. If costs are awarded by the Tribunal, the Tribunal may determine by whom and to what extent costs are to be paid: NCAT Act, s 60(4); Kurmond Homes Pty Ltd v Spiteri [2015] NSWCATAP 48.
3. The "guiding principle" for the NCAT Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 36(1). Given the amount in issue, it would be disproportionate and contrary to the guiding principle to require either party to now have to have their costs assessed. This would add further delay and further expense to what has already occurred. Consistent with the proportionality principle the appropriate course is for the Appeal Panel to determine costs.
4. As the Appeal Panel noted in Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41 at [20], a self-represented party can recover expenses that they would have been able to recover had they been represented: Farquar & Farquar (No. 2) [2008] FamCA 682 at [8].
5. The respondent asks that it be reimbursed the sum of $232.50 for its disbursements. This amount relates to the costs of postage and photocopying. Tax invoices are provided.
6. These are amounts that the respondent would have been able to recover had it been represented.
7. The appellant is to pay these costs within seven days.
8. The submissions of the appellant also state: "We leave it to your discretion as to a hearing or a determination in our absence, however the writer remains physically incapacitated (walking/driving) due to the knee reconstruction surgery and heavy medication. We remind the appellant that its appeal was dismissed pursuant to s 55(1)(c) of the NCAT Act, that is due to its non-appearance at the appeal hearing. We remind the appellant that s 55(2) of the NCAT Act provides that the Tribunal may reinstate proceedings that have been dismissed under s 55(1)(c) if the Tribunal considers that there is a reasonable explanation for that failure. It is a matter for the appellant if it wishes to pursue this course

Order 1. The appellant is to pay the respondent the sum of $232.50 by 23 October 2018.

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 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: 18 October 2018