Garside v Coffey

"[85] By mischaracterising and misstating the nature of the proceedings, the Member was in breach of the obligation to ensure the appellants understood the nature of the proceedings, to ensure that they understood the implications of withdrawing their application and to ensure a fair hearing. We consider this also constitutes a breach of s 38(5) of the NCAT Act and was a denial of procedural fairness."

1. We also noted that while the issues in the appeal had been overtaken by an application by the owner's corporation, the only "live issue" between the parties was the outstanding costs decision, and that it was that decision that gave utility to the appeal: see appeal decision at [90].

1. The NCAT Act sets out the law concerning the awarding of costs in the Tribunal. The general rule is that each party pays their own costs unless there are special circumstances warranting an award of costs.
2. Section 60 of the NCAT Act provides as follows:

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.

costs includes -

(a) the costs of, or incidental to, proceedings in the Tribunal, and

(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.

1. The Civil and Administrative Tribunal Rules 2014 (NSW), s 38, provides for an awarding of costs in the Consumer and Commercial Division of the Tribunal in certain circumstances where a monetary sum is sought. That was not relevant in this case because the appellants did not seek a sum of money.

1. The Tribunal referred to s 60 of the NCAT Act and to Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622 where the High Court held that where both parties have acted reasonably and there have been no adverse determination on the merits, the appropriate order is that there be no order as to costs. However, the Tribunal went on to consider the conduct of both parties and whether there were "special circumstances" warranting the costs order in favour of the respondents.
2. The Tribunal found that as the appellants had withdrawn their case at the hearing, they had capitulated. The Tribunal also held that the appellants' application had been misconceived given they had no standing to bring the application. As we noted in our appeal decision, in coming to this view, the Tribunal misconstrued the scope of s 232 of the SSMA. This meant that at least in relation to that aspect of the case, the appellants did have standing.

1. Under s 81(1) of the NCAT Act, the Appeal Panel has power, when determining an internal appeal to make "such orders as it consider appropriate in light of its decision on appeal" including that "the decision under appeal be ... set aside and for another decision to be substituted for it."
2. We have taken into account both parties' submissions on this appeal and have decided to allow the appeal for the following reasons.
3. The Tribunal's costs decision was premised on the accuracy and validity of the original decision. However, we ultimately set aside the orders made by the Tribunal on the basis of the questions of law that arose: the Tribunal's misconstruction of the SSMA which led to the discontinuance of the proceedings by the appellants at first instance and resulted in a denial of procedural fairness.
4. The same erroneous premises formed the basis for the Tribunal's finding of "special circumstances" that warranted the grant of a costs order. The conduct which the Tribunal found to be disentitling conduct - the appellants' withdrawing the proceeding during the hearing on the basis that they had no standing - arose from the errors of the Tribunal. Consequently, those errors on questions of law necessarily permeate the finding of special circumstances and ultimately infected the Tribunal's conclusion in the costs decision.
5. The order awarding costs in favour of the respondents should be set aside.

(1) An oral hearing is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW)

(2) The appeal from the costs decision is allowed.

(3) The orders made by the Tribunal in 2024/00432941 on 30 May 2025 are set aside.

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.