FPA v NSW Trustee and Guardian

Costs application

1. The application for costs was made on 3 July 2023. In her application FPM noted that in submissions prior to hearing she had submitted that FPA's application to the Tribunal to prevent the sale of the property was vexatious. FPM cited s 60 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) and submitted that there were special circumstances concerning how FPA had instituted and run the proceedings warranting the Tribunal making a costs order because provisions of s 60 had been enlivened.
2. This application is governed by the provisions of s 60 of the NCAT Act which provide for costs only in special circumstances.
3. Section 60 relevantly provides the following matters relating to an award of costs: 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.

Submissions

1. FPM submitted that FPA's numerous applications to the Tribunal had unreasonably delayed / prolonged the proceedings s 60 (b), no new matters had been raised in repeated applications to the Tribunal and that FPA's proceedings were vexations and lacked substance.
2. FPM submitted a claim for $7258.59 in respect of her own costs in an email dated 3 July 2023. It also appears from the details of her application that FPM is also seeking that FPA bear the costs of the first respondent the NSW Trustee and Guardian so that the protected person's living estate should not be expended on the NSW Trustee's costs of meeting and resisting FPA's application.
3. By email dated 7 July 2023 FPM advises that the NSW Trustee's estimate of costs are approximately $11,000.00 bringing a total cost amount of $18,258.00 with the $11,000.00 approximate portion borne from the protected person's estate.
4. As a preliminary point I note the following: (a) FPM's costs will not be borne by the protected person's estate, (b) the NSW Trustee and Guardian's costs may be recovered from the estate as an expense arising from the management of the living estate, and (c) no claim for costs has been made by the first respondent (the NSW Trustee and Guardian) in relation to the application to the Tribunal.

Consideration

1. These proceedings and the prior applications between the parties are illustrative of a protracted dispute.
2. I observe that s 60 of the NCAT Act does not require that all the provisions need to be enlivened to establish special circumstances.
3. To enliven the "special circumstances" under s 60 the circumstances may be out of the ordinary, but 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].
4. On the material before me it appeared that FPA was seeking to overturn the decision of the NSW Trustee to sell the property. Previous applications dealt with matters in the Guardianship Division of the Tribunal and an appeal to the Internal Appeal Panel concerning a Guardianship Division decision. All the matters are somewhat related as they all concern how the protected person's living estate is to be managed, initially under an Enduring Power of Attorney (EPOA), then under Financial Management with FPA appointed and finally under Financial Management with the NSW Trustee appointed. Whilst there would appear to be a series of actions taken by FPA, some of the matters (such as review EPOA and review Financial Management applications in the Guardianship Division), have been instigated by others with the best interests of the protected person in mind. Clearly FPA has not caused the making of such applications and has been required to meet them in his responses before the Tribunal.
5. Whilst the current matter has been commenced by FPA, that was in response to a decision of the NSW Trustee and on the face of it at least initially a fairly orthodox application in nature. Section 70 of the NSW Trustee and Guardian Act 2009 (the Trustee Act), provides a review by the Tribunal as of right. 70 Administrative review by NCAT of decisions by NSW Trustee in relation to managers (1) Each of the following persons may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision by the NSW Trustee under this Part in relation to the functions of a person appointed as a manager - (a) the person appointed as manager, (b) any other person who, in the opinion of the Civil and Administrative Tribunal, has a genuine interest in the matter to which the NSW Trustee's decision relates. (2) Subsection (1) does not apply if the decision by the NSW Trustee was made in accordance with a direction given by the Supreme Court to the NSW Trustee.
6. It is true that the manner in which FPA ran his application was somewhat complicated, however the Tribunal notes that FPA is not legally trained and was dealing with a matter for which he was significantly invested both emotionally and from a collateral perspective due to the existence of the Deed.
7. In the case of Brodyn Pty Ltd - v- Owners Corporation - Strata Plan 73019 (No 2) [2016] NSWCATAP the Appeal Panel considered special circumstances under s 60 existed but declined to make any order favouring one party. At [23] to [26] the Appeal Panel observed: 23. Any application for costs depends upon the circumstances of the individual case: Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152 at [27]. 24. Further, 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. These include: (1) Costs are compensatory: see Latoudis v Casey (1990) 170 CLR 334; (2) That an unsuccessful party bears the costs of the successful party: Oshlack v Richmond River Council [1998] HCA 11 at [134]; (3) Whether, by reason of the relative success of the parties on different issues and the time taken to determine those that an order for costs based on issues should be made; see eg Bostick Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304. 25. Further, in some circumstances where s 60 of the NCAT Act regulates an award for costs, a limited order for costs might be made to reflect the fact that only some aspects of the appeal should properly be categorised as out of the ordinary and to make a general order for costs in favour of a successful party might be inappropriate having regard to principle that absent special circumstances each party is to pay their own costs. See eg McPherson v Mace (No 2) [2016] NSWCATAP 198. 26. Overall, the Tribunal is to exercise its discretion in a manner that is fair and reasonable having regard to the circumstances of the particular case.
8. In my view it is clearly evident from section 60 that the intention of the legislature was that proceedings in this Division of the Tribunal be in effect a 'non costs jurisdiction'.
9. This view is supported by the words of the statute in s 60 (2) that costs may only be awarded in special circumstances. It follows that in this jurisdiction the ordinary rule is that each party to proceedings before the Tribunal is to pay its 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.
10. Subsection 60(2) gives the Tribunal a wide discretion to award costs where it is satisfied that there are 'special circumstances' that warrant an award of costs. This appears to be a two stage test or approach. In order to enliven this provision there must be circumstances which are out of the ordinary but not necessarily extraordinary or exceptional.
11. I am not satisfied that any of the provisions of the section apply to the circumstances of this application. As noted above, despite the complex history of the arrangements around the management of the protected person's finances, there is nothing unorthodox, out of the ordinary or unusual about FPA exercising their statutory right under s 70 of the Trustee Act to seek a review of the decision of the first respondent to sell the property.
12. Further FPM has not been legally represented in the proceedings. If FPM has paid for legal advice and assistance outside of representing her in the proceedings, then these matters would ordinarily be counted as disbursements. It appears that FPM's application concerns five invoices from lawyers and a cost for copies of sound recordings of NCAT proceedings. It is unclear what these sound recordings are of or why they were needed to meet FPA's application to the Tribunal in these proceedings. FPM claims: $3,038.50.
13. In addition there are four invoices listed in the application under the heading 'Mum' which is a reference to the protected person. It appears that FPM has expended funds on advice or the provision of services for the protected person. On these matters the total claim is $7258.59. As noted FPM also appears to be seeking that the Tribunal order that the NSW Trustee's legal costs be borne by FPA. However the Trustee has advised that it does not seek to be heard on FPM's application and advised that the, 'NSW Trustee and Guardian neither consents nor oppose the application. NSW Trustee does not wish to make an application for costs'.
14. As such the Tribunal will not consider the NSW Trustee costs nor should it consider the cost claim concerning the protected person ($7,258.50) as submitted by FPM. FPM is not authorised to expend funds on the protected person's behalf as the protected person is under Financial Management and FPM is not currently (or at the relevant time) the Manager.
15. FPA filed submissions opposing the making of a costs order by the Tribunal. Bearing in mind the finding that I have made I do not propose to summarise those submissions in these reasons other than what is set out at [30] below. I take that course in part because they have previously been served on the respondents and also because they are not highly relevant in their content.
16. Whilst FPM's submissions of 14 August 2023 in reply to FPA's submissions opposing costs do assert that there is evidence that FPA unnecessarily disadvantaged the other parties, such an argument in my view is not made out on the evidence of the conduct of the current proceedings.
17. FPA claims that his proceedings are somewhat in response to the application by FPM to have the EPOA reviewed by the Tribunal in the Guardianship Division and subsequently the review of the Financial Management Order following a period whereby FPA was appointed Manager.
18. Finally I note that FPM sought to be joined to these proceedings. The proceedings concerned FPA as occupier of the protected person's property and a decision by the NSW Trustee as Financial Manager to sell that property. Whilst FPM was previously involved in management of the protected person's estate, by the time of the application to the Tribunal, and during the course of the proceedings she held no formal role in the management of that living Estate.
19. Whilst FPM would have a genuine interest in the decision of the NSW Trustee, she was not in a position to make an application under s 70 of the Trustee Act as she supported the Trustee's decision. FPM played a role in the proceedings but that role was of far less significance that the main contest between FPA and the NSW Trustee (as objector and decision maker). Had FPM taken no part in the proceedings on my assessment of the arguments of the principal parties, the outcome of FPA's application would have been the same. This is clear from the reasons for decision of the substantive proceedings.
20. Had FPM not sought and succeeded in being joined then no costs would have been incurred and no costs application would have been necessary.
21. I find that special circumstances in accordance with s 60 (3) of the NCAT Act are not enlivened in the current proceedings before the Tribunal.

Orders

1. The Tribunal makes the following orders: 1. Pursuant to s 50 (2) of the Civil and Administrative Tribunal Act 2013, order that a hearing of the second respondent's application that the appellants pay the respondent's costs of the appeal be dispensed with. 2. The application by the second respondent for a costs order is refused.

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: 20 September 2023