Huang v Champion Homes Sales Pty Ltd (No 2)

1. On 13 November 2025, the respondent made an application for costs in the sum of $10,119 under s 60(4)(a) of the NCAT Act, comprising:

audio recording $96

transcript $1,848

binders and photocopying $75

counsel's fees $8,100

Total $10,119

1. The respondent provided copies of invoices to support the application, including an invoice from counsel, Mr Chris Stomo, in the sum of $8,100. The memorandum of fees records time spent by Mr Stomo as being one day to review the material provided by the respondent, comprising a large lever arch folder, and four hours to draft an advice on the merits of the appeal. Mr Stomo's daily rate is $5,000 and his hourly rate is $600. Included in the bundle of documents provided by the respondent is a letter of instructions to counsel dated 24 March 2025. The letter requested as follows:

We wish to retain your services to provide advice as to the appellant's grounds of appeal and how we should respond to the numerous grounds of appeal which the appellant has raised.

We are of the view that many of the grounds of appeal are misconceived and flawed in that they do not identify pure questions of law and would thus require the appellant to seek leave. In our view the appellant is also attempting to have the case reheard which goes against settled authority about the purpose of appeals.

Accordingly, we seek your advice as to what constitutes an error of law for the purposes of this appeal as we wish to make detailed submissions to The Appeal Panel to reject Dr Huang's scatter gun approach in her appeal. We also seek your view as to the overarching claims made by the appellant regarding Champion Homes' submission to the local council back in March 2021 (including the overlapping personal attacks on the writer) and how we should respond in the context of this appeal.

1. By cover letter dated 31 March 2025, Counsel sent advice to the respondent concerning the "merits of the appeal". The letter of advice was not included but the covering letter states as follows:

In short, the appeal appears to include a large volume of information, essentially an attempt to relitigate the original decision. Unfortunately, it is argued to infringe on the proper dissemination of evidence, and this raises questions of law.

The advice deals with the above matters.

1. The invoice provided in respect of the transcription service was an invoice directly from the transcript provider dated 27 June 2024. Given the date of the invoice, it is apparent that this transcript was obtained and used for the preparation of submissions for the Tribunal at first instance and not for the appeal, although we accept that this transcript was used by the respondent to assist in the preparation of its opposition to the appeal subsequently lodged by the appellant.
2. There were no invoices provided for the audio recording or the photocopying and binders.
3. The respondent also provided a copy of the Guideline published by the NSW Supreme Court's Cost Assessment Rules Committee updated in October 2023. The Guideline provides guidance to assessors in relation to the assessments of costs on a party/party basis in proceedings before the Court. The daily rate for junior counsel is nominated in the range of $2,400 to $5,000 with the hourly rate as $240−$560 dollars.
4. The appellant did not make an application for the costs of the appeal and opposes the costs application made by the respondent.

1. Section 50(1) of the NCAT Act provides that a hearing is required for proceedings in the Tribunal except, relevantly, if the Tribunal makes an order under this section dispensing with a hearing. Section 50(2) provides that the Tribunal, which includes the Appeal Panel, 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 or provided. The Appeal may not make an order dispensing with a hearing unless it has first afforded the parties an opportunity to make submissions about the proposed order and taken any such submissions into account: s 50(3).
2. Both parties were directed to provide evidence and submissions in relation to the application for costs of the appeal. They were also directed to address the question of whether the application could be determined on the papers, so that a hearing could be dispensed with under s 50(2) of the NCAT Act.
3. The respondent consented to an order dispensing with the hearing. The appellant did not make submissions addressing this issue.
4. We are satisfied that the costs application can be determined on the papers, in the absence of a hearing attended by the parties. The directions gave the parties a reasonable opportunity to put forward their arguments on the issue of costs. Both parties provided extensive submissions and, in the case of the respondent, evidence relevant to the application for costs. The evidence provided is uncontroversial and gives details of amounts paid by the respondent in respect of the appeal. The appellant disputes that these amounts should be recovered by the respondent as costs of the appeal but does not dispute that the costs have been incurred. There are no matters that we need to hear evidence about.
5. Making such an order dispensing with a hearing is consistent with the guiding principle under s 36(1) of the NCAT Act for the just, quick, cheap and efficient resolution of the real issues in the dispute. Accordingly, we make an order dispensing with a hearing under s 50(2) of the NCAT Act. We have considered this application having regard to submissions filed by the parties and the evidence provided by the respondent in support of the application.

1. The general provision that governs costs in the Tribunal is s 60 of the NCAT Act, which is in Part 4. However, there are different rules for costs that apply across the Divisions of the Tribunal, depending on the proceedings, by reason of s 35 of the NCAT Act. Section 35 of the NCAT Act provides that each of the provisions in Part 4 is subject to the enabling legislation and procedural rules. The "procedural rules" are defined in s 4(1) as the Tribunal rules made by the Rules Committee. These procedural rules are contained in the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules). Because the decision under appeal was a proceeding in the Consumer and Commercial Division, the relevant rules that apply are rr 38 and 38A of the NCAT Rules. These rules modify the general application of s 60.
2. Section 60 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.

(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. However, rules 38 and 38A of the NCAT Rules provide:

38 Costs in Consumer and Commercial Division of the Tribunal

(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) the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under clause 10(2) of Schedule 4 to the Act in relation to the proceedings, or

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

38A Costs in internal appeals

(1) This rule applies to an internal appeal lodged on or after 1 January 2016 if the provisions that applied to the determination of costs in the proceedings of the Tribunal at first instance (the first instance costs provisions) differed from those set out in section 60 of the Act because of the operation of -

(a) enabling legislation, or

(b) the Division Schedule for the Division of the Tribunal concerned, or

(c) the procedural rules.

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

1. The effect of r 38A is that in the appeal of a decision of the Consumer and Commercial Division, the costs provisions applying in the proceedings at first instance (in this case r 38) are carried over to the costs rules applying to the appeal of the decision. This being the case, if the amount claimed or in dispute in the appeal is more than $30,000, the Appeal Panel has discretion to award costs. In this appeal, the amount in dispute exceeded $30,000. We therefore have discretion to make an order for costs. This is not in dispute.
2. The discretion under r 38A of the NCAT Rules is on its face unfettered but it is well-established that this discretion must be exercised judicially (for instance, see 203 Castlereagh Pty Ltd v Skybloo Holdings [2017] NSWCATAP 29 at [21]). It is also well-established that costs orders made on the ordinary basis usually follow the event, namely, they are made in favour of the successful party, and where the usual course is not followed the reasons for doing so ought to be clearly explained: Grbevska & Grbevski v Zac Homes Pty Ltd No 2 [2025] NSWCATAP 285 (Grbevska) at [17]-[18]

1. The respondent accepts that a self-represented litigant cannot be compensated for time spent in preparing or running the case or for items such as travel expenses. However, the respondent submits that out-of-pocket expenses that have been reasonably incurred can be recovered, and it is submitted that these expenses include costs and disbursements for legal work done by others. The respondent relies on Grbevska, where the Appeal Panel set out the legal principles concerning self-represented parties seeking costs. The respondent also relies on an earlier decision of the Appeal Panel, cited with approval in Grbevska, in The Owners - Strata Plan No 21563 v Rutherford [2023] NSWCATAP 326 (Rutherford) where the Appeal Panel considered whether legal costs incurred by a self-represented party were "costs of, or incidental to, proceedings in the Tribunal" for the purposes of s 60(5) of the NCAT Act.
2. The respondents submits that the audio recording was paid for by the respondent, and the recordings were professionally transcribed by Transcription Australia at a cost of $1,848. It is contended that the transcript was extensively used for the purpose of framing the written submissions on appeal and the cost of having the hearing audio recordings transcribed was therefore "reasonably incidental" to the conduct of the appeal. The respondent submits that the cost for the binders and the photocopying was also a cost reasonably incurred in the conduct of the appeal.
3. In relation to counsel's fees, the respondent submits that it was reasonable to obtain counsel advice on the conduct of the appeal and in the formulation of the respondent's reply to appeal, particularly given that the appellant had impugned the character of the respondent's business manager who had the carriage of the matter. The respondent also submitted that the use of AI generated submissions further complicated the appeal. The respondent contends that it was prudent to obtain independent legal advice to review the decision and the appeal documentation. The respondent contends that the appellant herself had consulted lawyers during the initial hearing and made submissions that she had incurred substantial legal costs in the vicinity of $25,000 − the costs of the respondent in obtaining legal advice from counsel in connection with the appeal are moderate by comparison.
4. The respondent further submits that the Appeal Panel has discretion to determine to what extent costs to be paid and that it is empowered under section 60(4)(a) of the NCAT Act to make a lump sum costs order. It is submitted that it is desirable to bring finality to the proceedings by ordering costs to be fixed rather than left floating by ordering that costs be agreed or assessed, leading to possible satellite litigation on costs.

1. The appellant does not dispute that the respondent, as the winning party, is entitled to costs but submits that the cost payable should be confined to necessary proven disbursements and fixed at a modest lump sum, which the appellant assessors to be $300.
2. The appellant further submits that she brought the appeal on a bona fide basis in response to a lengthy and complex first instance decision. The Appeal Panel accepted that she had raised questions of law on their face and granted an extension of time. The factual and procedural history was complex. The appellant contends that she does not wish to challenge the conclusions reached by the Appeal Panel but nonetheless repeats the complicated issues raised in the appeal in her submissions and contends that these complexities are directly relevant to the costs jurisdiction. The appeal was not a manufactured or trivial dispute. She notes that her use of the AI generated material was addressed during the appeal hearing and this do not convert a bona fide appeal raising serious issues to one that justifies a substantial punitive shift of the respondent's claimed costs.
3. The appellant submits that the respondent is a sophisticated repeat user of Tribunal processes and has in-house legal expertise. She contends that it was not necessary for the respondent to incur external counsel advice and to incur disbursements of $8,100. She submits that even though the respondent was "formally successful" in resisting the appeal, this is not a case where the equity strongly favours shifting its appeal cost to a homeowner who was already lost substantial sums and received no building work.
4. The appellant accepts the submission made by the respondent that a self-represented litigant can only recover out of pocket disbursements but disputes that the legal costs incurred for counsel fees should not be recovered. She submits that the real question is whether the items claimed were necessary and proportionate and whether they were properly connected with the conduct of the appeal. The appellant disputes the costs claimed on the basis that would shift the cost of the respondent's private legal advice to the appellant.
5. In relation to the specific claims made, the appellant submits as follows:

(1) The cost for the audio recording and transcript should not be recoverable because they included embedded unattributed extracts within the submissions. The Appeal Panel noted that the extracts did not comply with the direction and were therefore not taken into account in deciding the appeal. As such, the respondent has not demonstrated the full cost of obtaining a professional transcript to the entire hearing was necessary or proportionate to the appeal.

(2) The respondent claims $75.00 for binders and photocopying but this is an ordinary in house document production expense and there is no evidence of this copying was done externally.

(3) The appellant accepts that, in principle, a self-represented party can sometimes recover as a disbursement the reasonable cost of external legal advice that is "truly necessary and properly connected to the conduct of the proceedings". The respondent bears the onus of establishing this. The respondent submits that the respondent has not established that the legal advice was necessary, proportionate or that it was not duplicative of work that was capable of being done in-house. It is also submitted that the advice was obtained in March 2025 which was before the appellant lodged amended grounds of appeal. There is no evidence that counsel's opinion addressed the amended grounds as finally settled. It is also relevant that the respondent has in-house legal expertise and is a sophisticated repeat user of NCAT processes. The respondent therefore had the capacity to prepare and present its case without external counsel.

(4) The respondent appeared as a self-represented party and there was no indication in directions hearings or written submissions that external counsel had been retained. The fact that counsel was retained raised fairness concerns in a jurisdiction dealing with self-represented consumers, as the appellant was in this case. The appellant submits that the fees claimed should not be allowed as a recoverable disbursement but, in the alternative, if the Appeal Panel intends to allow some amount in principle, it should be heavily discounted on a broad-brush basis to reflect: first, the absence of evidence that the advice was a necessity or had an impact on the appeal as ultimately argued, secondly, the fact the respondent, which has in-house legal expertise and is a sophisticated user, had the capacity to prepare and present its own case without external counsel, thirdly, the late post decision disclosure of the opinion, fourthly, the proportionality and fairness in a consumer home building appeal involving a self-represented homeowner and, fifthly, the fact that the builder terminated with no construction work, but retained $55,000 in tender and deposit fee.

(5) The appellant does not oppose in principle the use of a lump sum where a costs order has been made but submits, for the reasons previously outlined in her submissions, that any lump sum should be modest.

1. It is not in dispute that the Appeal Panel has discretion to award costs of the appeal in this case or that the respondent was the winning party and may be entitled to recover out of pocket expenses. Nor is there dispute about the Appeal Panel making a fixed costs or lump sum order for costs. Both parties agree this is the preferable approach to avoid further costs in the assessment process.
2. The appellant does not object to a lump sum being ordered but submits that the critical issue is whether the costs incurred where necessary and proportional in the circumstances of this case. She submits that the respondent's out of pocket expenses should be assessed as no more than $300, which also reflects that the respondent has not established the costs incurred were necessary or that impacted upon the outcome of the appeal. Relevantly, the appellant takes issue with the respondent, as a self-represented litigant, being able to claim costs for counsel's fees and legal advice obtained in relation to the appeal. Counsel's fees claimed is the most significant and contentious cost claimed. In contrast, the respondent submits that the costs claimed were reasonably incurred. It is further submitted that the cost for obtaining counsel's advice was reasonable because of the complexity of the claim and the personal attacks made on the respondent's representative.
3. Having regard to the submissions of the parties and the material before the Appeal Panel, the issue is not whether the respondent is entitled to costs of the appeal and whether it is appropriate to make an order for costs in a lump sum, but rather how should those claims for costs be assessed and quantified and what lump sum order should be made.
4. The respondent refers to the useful summary of the legal principles in making a fixed or lump sum order as set out by the Appeal Panel in Lukas trading as Stone Obsessions NSW v Carstens [2021] NSWCATAP 329 at [12]:

Under s 60(4)(a) 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.

The power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Hamod v New South Wales [ 2011] NSWCA 375 at [818] per Beazley JA (Giles and Whealy JJA agreeing).

A "broad brush" approach is appropriate. To require the same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; [1999] FCA 673 at 5 [16]; Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [7].

The courts have typically applied a discount in assessing costs on a gross sum basis: Hamod v New South Wales at [814].

1. In applying a broad-brush approach, the Appeal Panel applied a discount of 30% to the lump sum sought by the respondents. We accept these principles provide useful guidance on the approach to quantifying lump sum costs of an appeal and set out our assessment of the costs claimed as follows.

1. We reject the respondent's claim for these costs.
2. The transcription and audio recording costs were incurred for the hearing at first instance, not for the appeal. The Tribunal made no order as to costs with the intention both parties would pay their own costs. Allowing recovery of these costs on the appeal, or any part thereof, would have the effect of reversing the costs decision made by the Tribunal at first, which was not appealed. There is no reason to reverse the first instance costs decision, particularly in circumstances where the respondent did not provide a copy of transcript in the appeal bundle in a complete or authorised form and the Tribunal was not satisfied about the accuracy or provenance of transcript references: Huang at [119]. We also accept the appellant's submission that to allow these costs in their entirety, when the respondent only relied on a small number of extracts which were disregarded by the Appeal Panel in any event, would be unfair.

1. The respondent cites authority for the proposition that legal services performed by another can be recovered as a disbursement (the Civil Trials Bench Book of the Judicial Commission of NSW, March 2025 at para [8-0090] and the cases there cited). On review of those cases, it is apparent that external legal costs were allowed as disbursements or out-of-pocket expenses and related to costs of legal practitioners as litigants in person, not a personal litigant who obtains legal advice. Although we accept those cases may be analogous to the current case.
2. The Appeal Panel decision of Grbevska includes the principles applying for recovery of costs by self-represented litigants, although does not directly address the issue raised in this case. In its ruling, the Appeal Panel, among other things, rejected a claim for legal advice obtained by a self-represented litigant in respect of the proceedings at first instance, the inference being that the Appeal Panel may have allowed those costs if satisfied they were reasonably incurred for the appeal.
3. In Rutherford, the Appeal Panel at [84] - [97] addressed the distinction between "out-of-pocket expenses" forming part of a substantive claim and legal costs as "costs of, and incidental to the proceedings" for the purposes of s 60(5), observing at [97] that "it is a distinction that must be made" because:

A successful party to litigation in the Tribunal cannot simply avoid the provisions of s 60 of the NCAT Act (which are subject to rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW)) by characterising what are, in fact, costs of and incidental to the Tribunal proceedings, as damages.. .

1. This distinction was relevant because the nature of the costs claimed was one aspect of the appeal, where legal costs were claimed as damages under the Strata Schemes Management Act 2015 (NSW). While the Appeal Panel in Rutherford did not specifically opine on whether external costs of a self-represented litigant could be recovered under s 60(5), it stated at [67] as follows:

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:

47 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.

1. Accordingly, both Grbevska and Rutherford focus on the language of s 60(5) and the importance of a necessary connect between the costs and the proceeding. Both cases also emphasise that the assessment of such costs is discretionary.
2. In our view, the definition of "costs" in s 60(5) is broad enough to cover counsel's fees for advice obtained from counsel directly related to the conduct of appeal proceedings.
3. We are satisfied, based on the material provided, that the respondent obtained counsel's advice to assist with drafting the reply and submissions in the appeal. The respondent submits, and we accept, that the amended grounds of appeal challenged almost every aspect of the decision at first instance. We also accept that, in these circumstances, the respondent decided to obtain external counsel advice, while still retaining in-house representation. The respondent further contends that counsel's advice was sought to obtain "independent" legal advice on the appeal where the appellant made claims challenging the role and advice of Mr Vardas, who represented the respondent in the proceedings at first instance and in the appeal. Again, this was a decision made by the respondent while still retaining in-house representation. In our view, such external costs would be characterised as "costs of, or incidental to" the appeal proceedings for the purposes of s 60(5) because they were incurred for the purposes of the appeal.
4. However, the critical question is whether we should allow recovery of these costs in the exercise of our discretion under s 60(4), as part of our assessment of a lump sum costs order in the circumstances of this case.
5. NCAT Guideline 1 - Internal Appeals, provides at para 29 that a party is not automatically entitled to be represented by another person, including legal representation, and leave is required unless the party was entitled to be represented without leave at the original hearing: s 45(1) and (2) of the NCAT Act. In this case, leave was required yet neither party applied for leave to be legally represented.
6. In our view, there is force in the appellant's submission that both parties were self-represented, she was not aware the respondent had the benefit of legal advice and she is disadvantaged by the respondent now claiming external legal costs in circumstances where it did not formally apply for leave and has significant experienced in-house capacity capable of opposing the appeal without the need for external legal advice.
7. We therefore reject these costs from the lump sum claim.

1. We accept this claim of $75 for binders and photocopying, even though the respondent has not provided further evidence to substantiate the quantum claimed. It is a modest amount given the respondent was required to prepare lengthy appeal bundles, which were of assistance to the Appeal Panel in determining the appeal.

(1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing on the question of costs is dispensed with.

(2) The appellant is to pay the respondent's costs in the fixed sum of $75.

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.