This is a costs application arising from the substantive decision of the Appeal Panel to dismiss the Lot owner's appeal.
The owners corporation (the respondent to the substantive appeal) wrote to the Appeal Panel seeking to make a costs application. The Appeal Panel issued directions for the filing and serving of submissions on the issue of costs.
Both parties have filed and served submissions and documents on the issue of costs. We have read and considered the submissions.
The owners corporation's submissions and documents only state that it seeks that the Lot owner pays its costs of the appeal in the amount of $1,291.45. Such costs involve the charge by the strata manager for the owners corporation in preparing documents and attending the Appeal Panel hearing. An invoice and a table setting out time spent and charges rendered were provided.
The submissions of the owners corporation contain no reasons as to why there are "special circumstances" under s 60 (2) of the Civil and Administrative Tribunal Act 2013 (NSW) ('the NCAT Act') sufficient to justify the costs order sought.
[2]
APPLICABLE PRINCIPLES
The amount claimed or in dispute in the appeal does not exceed $30,000; and Regulation 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) does not apply.
The owners corporation did not seek that there be an oral hearing on the issue of costs in its submissions; and we are satisfied the issue of costs should be determined on the basis of the written submissions and documents under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW) ('the NCAT Act').
Section 60 of the NCAT Act states:
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) 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.
The Appeal Panel of the Tribunal has considered on many occasions the applicable principles in respect of whether or not "special circumstances" apply to depart from the usual position under s 60 (1) of the NCAT Act that each party bears its own costs.
Such principles were summarised in The Owners-Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 at [6]-[15] (B & G Trading (No 2) as follows:
"6. The general rule set out in s 60(1) was (citing Youssef v NSW Legal Services Commissioner (Costs) [2020] NSWCATOD 115 at [107]):
'… designed to promote access to justice generally and to minimise the overall level of costs in tribunal proceedings as far as is practicable: Choi v University of Technology Sydney [2020] NSWCATAP 18 at [41].'
7. In Feng v OzWood (Australia) Pty Ltd [2020] NSWCATAP 42 the Appeal Panel said, at [8], that the discretion to award costs had to be exercised judicially:
'...having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. (See eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [23]-[31]; Nguyen & Anor v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen & Anor (No 2) [2016] NSWCATAP 168 at [16].)'
8. Section 60(2) says that the Appeal Panel may award costs to a party 'only if' satisfied there are special circumstances warranting an award of costs.
9. Section 60(3) sets out a non-exclusionary list of factors to which an Appeal Panel may have regard in determining whether special circumstances warranting an award of costs exist.
10. 'Special circumstances' are circumstances that are out of the ordinary, but need not be those which are exceptional or extraordinary: Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [60] (Santow J); Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32]; Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222 at [8]; Edwards v Commissioner for Fair Trading, Department of Customer Service (Costs) [2019] NSWCATAP 249 at [9]; Youssef v NSW Legal Services Commissioner (Costs) [2020] NSWCATOD 115 at [107].
11. However, it does not follow that a costs order should be made simply because one or more of the factors in s 60(3) are made out.
12. Even if satisfied that there are special circumstances, the Appeal Panel must further be satisfied that they are circumstances 'warranting an award of costs' - Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103 at [21]; Youssef at [108].
13. The exercise of the discretion requires the Tribunal 'to weigh whether those circumstances are sufficient to amount to 'special' circumstances that justify departing from the general rule that each party bear their own costs': BPU v New South Wales Trustee and Guardian (Costs) [2016] NSWCATAP 87 at [9]; Obieta v Australian College of Professionals Pty Ltd (2014) NSWCATAP 38 at [81]; Khalaf v Commissioner of Police [2019] NSWCATOD 178 at [29]; Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 at [35].
14. He who asserts must prove, and so the party seeking the costs order bears the onus of proving that special circumstances exist - Styles v Wollondilly Shire Council [2017] NSWCATAP 108 at [5] under the heading 'Costs'.
15. Whether special circumstances exist is a question of fact and each case must be assessed according to its circumstances: Wynne Avenue Property Ltd v MJHQ Pty Ltd (No 2) [2019] NSWCATAP 68 at [57]; The Owners - Strata Plan 20211 v Rosenthal [2019J NSWCATAP 49 at [15]."
[3]
CONSIDERATION
To succeed in this costs application, the owners corporation must not only establish that there are one or more "special circumstances", but that such "special circumstances" are sufficient to depart from the principle that each party bear its own costs under s 60 (1) of the NCAT Act.
The owners corporation has provided no reasons as to why there are "special circumstances" sufficient to persuade us that we should exercise our discretion to depart from the principle that each party should bear its own costs.
Merely writing to the Appeal Panel seeking an order for costs and attaching an invoice and calculation of expenses is manifestly insufficient to obtain a costs order under s 60 (2) of the NCAT Act. The mere fact the respondent was successful in the appeal is not a "special circumstance".
In any event, we do not regard the appeal as sufficiently weak or unarguable that the 'special circumstances' test is satisfied; nor that there is any other matter in s 60 (3) of the NCAT Act that gives rise to 'special circumstances'.
[4]
ORDERS
1. An oral hearing on the issue of costs is dispensed with.
2. The application for costs is dismissed.
[5]
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 May 2022