Hatzigeorgiou v The Owners - Strata Plan No 71571

REASONS FOR DECISION

1. On 6 July 2021, for the reasons then given by the Panel, the order for costs made by the Tribunal in its Consumer and Commercial Division on 10 March 2021 was quashed, pursuant to s81(1) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act").
2. Pursuant to the orders of the Appeal Panel of 6 July 2021, the Appellant sought an order for the costs of the appeal. The Appeal Panel made directions for submissions on costs, and for the parties to address whether the issue of costs could properly be determined on the papers, and a hearing dispensed with. The Respondent filed submissions on 28 July 2021 opposing the making of any order for the costs of the appeal. On 29 July 2021, the Appellant filed submissions in support of his application for an order for the costs of the appeal. Neither party sought to persuade the Appeal Panel that the issue could not be adequately determined on the papers. We are satisfied that it can be, and will order that a hearing be dispensed with: NCAT Act, s 50(2).
3. In its submissions, the Respondent asserted that it had not "yet seen any reasons given for the appeal being successful". The Appeal Panel's reasons for its decision were given orally. Each of the parties was in attendance by telephone whilst such reasons were being given. Nothing relating to the delivery of the Appeal Panel's reasons in the appeal impacts upon the current controversy.
4. The Respondent referred, initially, in its submissions to Rule 38A of the Civil and Administrative Tribunal Rules 2014 ("the Rules"). As is not in doubt, r 38A is preceded and enlivened by the circumstances articulated in r 38, and has no present application. Ultimately, as the Respondent did refer to s 60 of the NCAT Act, and the requirement of "special circumstances" thereby created, nothing turns on the Respondent's misconception with respect to the source of power to make an order for costs.
5. The Respondent asserted that it had not seen "any claim by the Appellant that such special circumstances exist" as required by s 60 of the Act. The Respondent attached to its submissions a statement by its Chairperson, Ronald Choat, of 21 July 2021. The statement was assertedly to explain why Mr Choat did not provide a copy of the costs application, which was successful before the Tribunal, to the Appellant (paragraph 8). The Respondent further asserted that it had not conducted itself in the proceedings, at first instance or, more relevantly, in the appeal, "in a way that should earn the disapprobation of the Tribunal" (paragraph 9). The Respondent also relied upon the asserted criticism of the Appellant at paragraphs 9 and 10 of the Tribunal's reasons of 25 January 2021. It was ultimately submitted on behalf of the Respondent that the appeal was successful as a result of errors made by the Tribunal, rather than the Respondent, and that the Respondent should not be "penalised for any such errors".