Grbevska & Grbevski v Zac Homes Pty Ltd No 2

(6) If any party wishes to claim costs of the appeal -

(a) Any application for costs is to be filed and served within 14 days of publication of these reasons supported by submissions on costs

(b) Submissions in response to that application not to exceed 1000 words are to be filed within a further 14 days.

(c) Any submissions in reply from the costs applicant (not exceeding 500 words) are to be filed within a further 7 days.

(d) Bother parties submissions are to address whether the Tribunal can dispense with a hearing of the costs issues and determine them without a hearing on the papers.

1. These are our reasons for decision with respect to the costs of the appeal only.
2. A knowledge of our decision made on the substantive appeal is assumed in these reasons. We do not intend to repeat in this decision matters traversed there.

Additional materials relevant to the costs application

1. In addition to the material filed in the appeal, we received the owners submissions, dated 13 October 2025, relating to the costs issue, together with supporting receipts for out of pocket expenses they said had been paid by them in order to prosecute their appeal.
2. No submissions have been received from the builder within the time specified by our orders.

1. The owners requested that the costs issues could be determined on the papers. The builder has not expressed a view with respect to whether costs can be decided without a hearing, despite being given an opportunity to do so.
2. Section 50 (2) to (4) of Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) provide:

(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:

(a) afforded the parties an opportunity to make submissions about the proposed order, and

(b) taken any such submissions into account.

(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

1. We think that the issue of costs can be readily determined without a hearing on the materials provided. There are no matters that we need to hear evidence about. In those circumstances, we will dispense with a hearing of the costs issue.

1. Costs in the Consumer and Commercial Division of the Tribunal are to be determined in accordance with s 60 of the NCAT Act or rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules).
2. Section 60 provides a general rule that operates in the Tribunal to the effect that each party to proceedings in the Tribunal is to pay their own costs, unless there are special circumstances warranting an award of costs. Costs is defined in sub-s 5:

In this section -

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. Rule 38 makes provision with respect to certain matters in the Consumer and Commercial Division. It relevantly provides:

(1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal.

(2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if -

(a) ...

(b) the amount claimed or in dispute in the proceedings is more than $30,000.

1. Similarly, s 60 applies to internal appeals, but rule 38A(2) creates an exception and relevantly provides that:

(2) Despite section 60 of the Act, the Appeal Panel for an internal appeal ... must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal.

1. Rules 38 and 38A have been interpreted in numerous cases as constituting an exception to s 60.
2. Where they apply, costs orders can be made on the ordinary basis in the absence of special circumstances justifying a costs order, as otherwise required by s 60. Costs orders made on the ordinary basis usually follow the event, i.e. are made in favour of the successful party.
3. The making of a costs of is discretionary, but where the usual course is not followed the reasons for doing so ought to be clearly explained.
4. Where the parties are self-represented - as is the case here - they are restricted in what they can claim as costs. In our appeal decision we referred the parties to the CCD Guideline on Cost, August 2017, which contains the following advice to parties:

a) The fees charged by their lawyer or professional agent for preparing or running the case.

b) The 'disbursements' of their lawyer or professional agent. Disbursements are extra 'out of pocket' expenses charged by a lawyer or professional agent - such as Tribunal filing fees, witness expenses and photocopying charges.

c) The disbursements' of a self-represented party or non-professional agent - such as Tribunal filing fees, witness expenses and photocopying charges.

10. A party cannot ask for any of the following costs:

a) Their own travelling costs

b) Their own time spent in preparing or running the case, or lost earnings of a self-represented party or non-professional agent."

1. In Preston v Commissioner for Fair Trading [2011] NSWCA 40, Campbell JA explained, at [183] that :

"It has been held, ... that a litigant in person who is not a lawyer is not entitled to receive an order for costs to compensate him for time spent in preparing and conducting his case: Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403. However a self-represented litigant who is not a lawyer can recover an indemnity for at least some out-of-pocket expenses actually and reasonably incurred: Secretary, Department of Foreign Affairs v Boswell (No 2) [1992] FCA 629; (1992) 39 FCR 288; Lawrence v Nikolaidis [2003] NSWCA 129; (2003) 57 NSWLR 355 at [37]. It appears from Cachia v Hanes at 417 that those out-of-pocket expenses were ones of the type which would have been recoverable as disbursements if the Appellant had been legally represented. Thus such expenses include filing fees: Deva v University of Western Sydney [2008] NSWCA 137 at [82]. Though there are some English cases, and some previous Australian authority (including Boswell ) that say that under the heading of out of pocket expenses a litigant in person can get compensation for the opportunity cost of spending time on his litigation rather than on other paying work, since Cachia v Hanes those cases have not been followed in Australia: Lawrence v Nikolaidis at [37].

1. In The Owners - Strata Plan No 21563 v Rutherford [2023] NSWCATAP 326 (Rutherford) an Appeal Panel considered whether legal costs incurred by a self-represented party were costs of, or incidental to, proceedings in the Tribunal.

67. The term "costs of and incidental to proceedings" extends to the costs of such preparatory steps as are shown to be reasonably connected with the proceeding. In Fifteenth Eestin Nominees Pty Ltd v Rosenberg (No 2) (2009) 24 VR 155; [2009] VSCA 178 Maxwell P and Neave and Redlich JJA stated:

9 Under s 24 of the Supreme Court Act 1986 (Vic), 'the costs of and incidental to all matters' are in the discretion of the Court, which has full power to determine 'by whom and to what extent the costs are to be paid'. As this statutory language suggests, an order for 'the costs of the proceeding' is synonymous with - and has the same effect as - an order for 'the costs of and incidental to the proceeding'. That has been the conventional understanding, and the consistent approach of the Taxing Master of this Court, for many years. When one party is ordered to pay the other party's costs of a proceeding, that liability extends to the costs of such preparatory steps as are shown to be reasonably connected with the proceeding. That is so whether or not the words 'and incidental to' are included in the order.

68. In Talacko v Talacko [2009] VSC 446 Osborn J held that:

7 The phrase 'of and incidental to' is usefully discussed by Sir Robert Megarry, the Vice Chancellor in Re Gibson's Settlement Trusts [1981] Ch 179. On the one hand the phrase extends the award of costs to costs incurred in connection with matters in the court. On the other hand it requires such costs to be subordinate to or causally linked to such a matter.

8 In the present case on the one hand the phrase extends the costs to those preparatory to the hearing, on the other hand it limits costs of the prior proceeding recoverable to those which were in fact preparatory to the hearing. Those costs would ordinarily include the costs of the preparation of evidence and documentation utilised in the hearing, and in this respect I note that the hearing proceeded by way of evidence given in the first instance by way of affidavit.

..."

See also Cominos v Di Rico [2016] NSWCATAP 138, at [57], where the Appeal Panel referred to McIntyre v Perkes (1988) NSWLR 417 at 426.

1. Those costs extend to the "costs of such preparatory steps as are shown to be reasonably connected with the proceeding": Fifteenth Eestin Nominees Pty Ltd v Rosenberg (No 2) (2009) 24 VR 155; [2009] VSCA 178 Maxwell P and Neave and Redlich JJA .
2. Under s 60(4)(a) of the NCAT Act the Appeal Panel has power to fix the costs payable under an order: see Chi v Roger Fuller Pty Ltd (No 2) [2018] NSWCATAP 220 at [49]; Hanna v BOS Holdings Pty Ltd (No 2) [2019] NSWCATAP 73 at [15]; and Five D Pty Ltd v The Owners-Strata Plan No. 79642 [2018] NSWCATAP 244 at [31-32]. In Bechara trading as Bechara and Company v Bates [2016] NSWCA 29 the Court of Appeal (Beazley P; Meagher JA; Payne JA), when discussing making a lump sum or fixed cost order under s 98 of the Civil Procedure Act 2005 (NSW) explained that, at [12-15]:

"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."

1. The owners are seeking an order that the builder pay their out of pocket expenses fixed at $1,463.12, calculated as follows:

(c) Transcript Conversion - (Turboscribe.AI) - $31.97;

(d) Legal Advice - NCAT - Proceedings - $326.70; and

(e) Administrative and Photocopying Costs - $548.45.

1. They have produced receipts verifying these costs.

1. The owners were successful in their appeal. We can see no reason why costs should not follow the event in those circumstances. The owners are entitled to an order for costs of the kind recoverable by self-represented litigants.
2. We have reviewed the receipts provided by the owners. Our only issue with them relates to the claim for legal costs of $326.70. The invoice provided is dated 8 August 2024. This was before the Tribunal heard the original proceedings on 4 November 2024, and before it published the decision appealed on 14 February 2024. The notice of appeal against that decision was not filed until 16 May 2025.
3. In those circumstances, we do not accept that the legal costs of $326.70 were incurred with respect to the appeal. It is probable that the advice they relate to concerned the proceedings before the Tribunal, which were on foot as at the date of the invoice. Those costs are not recoverable as costs of the appeal.
4. All the other out of pocket costs claimed by the owners impress as being fair and reasonable. They total $1,136.42. We think it fair, cheap and quick to make an order that the builder pay fixed costs in that amount. This will bring the matter to an end; without further costs, time and effort being expended on a very simple costs issue.

(1) A hearing on the issue of costs of the appeal is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013.

(2) The respondent is to pay the appellant's costs of the appeal fixed at $1,136.42 within 28 days.

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.