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[2024] ACAT 88
respondent. The appeal was dismissed. The orders made by the Original Tribunal on 26 April 2024, including the $6,022 award for the Peak Consulting site inspection and defect report, remained undisturbed.
The Appeal Tribunal held that a successful applicant’s “fee” under s 48(2)(a)(ii) can include disbursements such as the cost of an expert report, not just the examples listed in the Act. Recovery is not automatic: the expense must be necessary for the application and the Tribunal must choose to award it. The first-instance Tribunal had incorrectly said it ordered the Homeowners to obtain the Peak Consulting report, but the Appeal Tribunal found the report was necessary because its contents informed the first-instance findings. The appeal was dismissed, so the original $6,022 award remained in place.
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2,542 words · generated 02/10/2026
JADK Builders Pty Ltd and the Homeowners, Anish Kumar and Sakshi Jolly, were parties to a written ACT Home Building Contract dated June 2021. The Builder was to construct a residential dwelling. Disputes arose about amounts allegedly overcharged, defects, incomplete work, and work said not to accord with approved plans and specifications. The Homeowners sought $14,997.10 and orders concerning rectification. The Builder counterclaimed for $16,845.70.
9 cited instruments linked from this judgment.
The first-instance proceedings were heard on 23 August 2023 and 8 April 2024. Both parties had legal representation at the first hearing; neither was represented at the second. During the proceedings, the parties agreed about some rectification work, the Builder abandoned its claim, and the Homeowners abandoned some claims.
The Homeowners relied on two reports: one from My Canberra Building Inspections and one from Peak Consulting. The first-instance Tribunal found for the Homeowners on most of the remaining claims. It rejected their claim for $2,050 in legal costs. It also rejected the cost of the My Canberra report, saying it was useful evidence but not a defect report. The Tribunal allowed $6,022 for Peak Consulting’s site inspection and report. That award was included in an order for $8,501, which also included the ACAT filing fee, a company search, and other amounts.
The Builder appealed only two grounds. First, it argued that the late claim for the Peak Consulting costs, and late provision of the invoices, denied it procedural fairness. Second, it argued that an expert report’s cost was not a “fee” within s 48(2)(a)(ii) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act).
A further issue emerged from the first-instance reasons. The Original Tribunal had treated the Peak Consulting report as something it had ordered the Homeowners to obtain. The Appeal Tribunal checked the file and found no such order. The directions required parties to file and serve expert reports on which they intended to rely; they did not require a party to obtain a report.
The appeal was heard by Acting Presidential Member G Curtin SC. The appeal was dismissed. The effect was that the orders made on 26 April 2024, including the $6,022 award, remained undisturbed.
The main question was the meaning of “fee” in s 48(2)(a)(ii). Section 48(1) provides the general rule that parties bear their own costs unless the Act, another Territory law, or the Tribunal otherwise provides. Section 48(2)(a) allows the Tribunal, where it decides an application for the applicant, to order payment of the filing fee and “any other fee incurred by the applicant that the tribunal considers necessary for the application”. Examples include a business name or company search fee, a subpoena filing fee, and hearing fees.
The Appeal Tribunal did not treat those examples as an exhaustive list. Section 132(1) of the Legislation Act 2001 says a statutory example “is not exhaustive” and “may extend, but does not limit” the meaning of the provision. The examples therefore did not, by themselves, confine recovery to government charges or administrative fees.
The Tribunal interpreted the provision in its statutory and legislative context. It referred to the Legislation Act’s requirements to consider the whole Act and prefer an interpretation that best achieves its purpose. It also applied the High Court’s approach to statutory construction in R v A2: begin with the text, but consider context and purpose from the outset rather than treating them as relevant only if the text is ambiguous.
The legislative history mattered. Before the 2013 amendment, s 48(2)(a) provided for recovery of the application filing fee. The amendment added the ability to award any other necessary fee and examples. The Attorney-General’s Presentation Speech said the amendment followed a “recent ACT Supreme Court ruling on costs” and was intended to let ACAT award other incidental costs incurred in bringing an application. The Appeal Tribunal understood that reference to be to CIC Australia Ltd v ACT Planning and Land Authority, Mainore Pty Ltd and ACT Civil and Administrative Tribunal [2013] ACTSC 96. It considered the amendment an expansion of the recoverable amounts beyond the filing fee.
The Appeal Tribunal disagreed with earlier ACAT decisions that had construed “fee” narrowly, including Burton and decisions that adopted Burton’s approach. It reasoned that the ordinary usage of “fee” can include payments for services and expenses, and that the Act did not define the word or confine it to compulsory government fees. The statutory examples were not exhaustive. The Tribunal also saw no principled reason to allow recovery of some necessary expenses, such as a company search or transcript, while excluding other necessary disbursements, such as expert evidence, without statutory language establishing that distinction.
The construction was not unlimited. The Tribunal drew a distinction between disbursements and professional legal fees. In its view, “costs” elsewhere in s 48 had a broader operation, while “fee” in s 48(2)(a) was narrower. It concluded that “fee” could include any disbursement incurred to prosecute the application, but not solicitor or barrister professional fees. Two controls applied: the expense had to be necessary for the application, and the Tribunal had to exercise its discretion to award it.
On the facts, the Appeal Tribunal found that the Peak Consulting report was necessary. The first-instance reasons showed that the report’s contents were relied on in making at least some findings for the Homeowners. The mistake about whether the report had been ordered therefore did not require the award to be set aside: the Appeal Tribunal could re-exercise the discretion on the correct basis and did so in favour of the Homeowners.
The procedural fairness ground also failed. The Builder had an opportunity to argue about whether the report was necessary. The transcript did not show an objection that it needed legal advice or representation, and the Builder did not provide evidence of what advice or additional submissions would have been given. The Appeal Tribunal also considered that the statutory construction issue had been argued before it, so any assumed unfairness had ceased to have operative effect.
Before the 2013 amendment, s 48(2)(a) expressly permitted an order for the application filing fee when the applicant succeeded. The Appeal Tribunal described the amendment as adding “any other fee” considered necessary for the application, alongside examples such as search, subpoena, and hearing fees.
The pre-existing structure of s 48 also included provisions for costs in particular circumstances, including unreasonable delay or obstruction and contravention of a Tribunal order. Section 48(3) addresses reasonable legal costs in the specific circumstances described in s 48(2)(d). The decision distinguished that broader language about “costs” from the “fee” language in s 48(2)(a).
Before this decision, several ACAT decisions had read “fee” narrowly. Burton treated the word as deliberately distinguishing compulsory government fees from disbursements such as expert expenses. Swan followed Burton in refusing expert-report costs. Dunne likewise treated an expert report prepared for dispute resolution as a disbursement that was not a “fee” recoverable under s 48(2). The Appeal Tribunal said it could not agree with decisions that held a disbursement was not a fee or that “fee” meant only a compulsory government fee.
After this decision, the Appeal Tribunal’s construction was that a disbursement can fall within “fee” in s 48(2)(a)(ii), including an expert-report cost, where it was incurred to prosecute the application and is considered necessary. That does not make every expense recoverable. The provision remains discretionary, and the decision expressly excludes professional fees charged by solicitors and barristers from its construction of “fee”.
The decision is confined to the text and context of s 48(2)(a)(ii) as considered in this appeal. It does not establish that an expert report is necessarily recoverable in every proceeding. The Tribunal’s reasoning depends on necessity and an exercise of discretion in the individual case.
The central interpretation was: “the word ‘fee’ in section 48(2)(a)(ii) means any disbursement (as lawyers understand that term).” The Tribunal immediately limited that proposition: “‘fee’ [does not] include professional fees or costs charged to clients by solicitors and barristers.” In plain English, the provision can cover certain case expenses paid to third parties, but the decision does not make legal representation charges recoverable under this subsection.
The Tribunal said the “limitation on the recoverability” was that the disbursement must be “necessary for the application” and that the Tribunal must be persuaded to exercise its discretion in the applicant’s favour. This means the provision is not an automatic reimbursement rule. The applicant’s success alone does not settle whether a particular expense should be paid by the other party.
On the examples in the section, the Tribunal relied on s 132(1) of the Legislation Act, under which an example is “not exhaustive” and may extend, but does not limit, a provision’s meaning. In plain English, the listed search, subpoena, and hearing fees illustrate possible expenses; they do not necessarily mark the outer boundary.
The first-instance Tribunal had referred to the Peak Consulting report as one it had ordered. The Appeal Tribunal said that the file showed directions about reports on which a party intended to rely, “different to an order” requiring a party to obtain a report. It then concluded that the discretion had miscarried because it proceeded on an incorrect basis. However, it re-exercised that discretion, reasoning that the first-instance decision relied on the report’s contents in making findings for the Homeowners. This distinction matters: the order survived not because the original premise was accurate, but because the Appeal Tribunal independently found the report necessary.
For procedural fairness, the Appeal Tribunal observed that the Builder had an opportunity to argue whether the report was necessary and had not shown what legal advice or further submissions would have been presented. Its analysis also referred to the principle that an appellate body may dismiss an appeal where there was no realistic possibility of a different result, and to the possibility that an appeal hearing can cure the operative effect of an earlier procedural shortcoming.
The decision is most directly relevant where a successful applicant seeks reimbursement under s 48(2)(a)(ii) for a third-party expense incurred in bringing or proving the application. The particular example was an expert report in a residential building dispute. The report addressed matters relevant to the Homeowners’ case, and the first-instance reasons showed that its contents contributed to factual findings in their favour.
The reasoning may also be relevant to other disbursements not specifically listed in s 48(2)(a)(ii), because the Tribunal held that the statutory examples are not exhaustive. But the decision does not say that every expense associated with litigation qualifies. The statutory requirement remains that the Tribunal consider the expense necessary for the application, and the Tribunal retains discretion whether to order payment.
The judgment also distinguishes between an expense incurred to prosecute the application and a cost that might instead be part of a substantive claim for damages or compensation. In its account of Dunne, the Appeal Tribunal noted the distinction drawn there between a report prepared for dispute resolution and a professional callout charge potentially incurred in identifying or repairing a defect. JADK’s central ruling concerns the meaning of “fee” under s 48(2)(a)(ii), not a general rule about how every expert-related payment should be categorised in a building claim.
The decision is also relevant where an original costs decision rests on an inaccurate premise about what the Tribunal ordered. Here, the Appeal Tribunal found that no order required the report to be obtained. It nevertheless re-exercised the discretion based on the report’s demonstrated role in the first-instance findings. That procedural feature should not be confused with the statutory interpretation holding.
The supplied judgment was published on 2 December 2024. The materials provided do not include decisions after that date, so they do not establish how later courts or tribunals have treated JADK. It would be unsupported to state that a later court has followed, distinguished, or rejected it.
The judgment itself discusses earlier ACAT authorities. It describes Burton as the first decision it found to examine s 48(2)(a) in detail, and explains that Burton read “fee” as referring to compulsory government fees rather than expert disbursements. It records that Swan adopted Burton’s reasoning and that Dunne applied it to set aside an award for an expert report. JADK expressly disagreed with those narrow interpretations.
The Appeal Tribunal also addressed Williams Love, Marshall, The Owners-Units Plan No 1475 v Davidson, and Bhara. Those decisions concerned, among other things, legal fees, printing costs, transcript costs, and expert expenses. JADK treated the examples as part of the history of Tribunal interpretation, but did not purport to overturn the ACT Supreme Court’s decision in CIC. Instead, it treated CIC as important context for why the 2013 amendment had been made.
Its treatment of precedent was framed in terms of comity between Tribunal decisions: the Appeal Tribunal said it would ordinarily follow earlier decisions, particularly Appeal Tribunal decisions, unless persuaded they were clearly or plainly wrong. It concluded that the statutory text, context, purpose, and legislative history justified not following the narrow line of ACAT decisions on expert-report disbursements.
The decision leaves factual and discretionary questions for future cases. It does not provide a comprehensive definition of every disbursement that can qualify as a “fee”. It establishes a broad category, but the necessity requirement and the Tribunal’s discretion still need to be applied to the expense and evidence in each case.
The judgment does not set out a detailed test for necessity. In this case, the report was considered necessary because its contents were relied on in the first-instance findings. The decision does not determine whether an expense is necessary merely because it was reasonably incurred, whether another form of evidence could have been used, or how duplication between multiple reports should be assessed. The first-instance Tribunal had allowed one expert report but not the other, but the appeal concerned only the Peak Consulting award.
The relationship between a disbursement claimed as a procedural expense under s 48(2)(a)(ii) and an amount claimed as substantive loss or compensation is also not fully resolved. The judgment recounts the distinction discussed in Dunne, but the appeal did not require a general ruling on how every expert or inspection cost should be characterised.
The decision also leaves the boundary between “fees” and “costs” dependent on the statutory context. It excludes professional legal fees from “fee” in s 48(2)(a)(ii), while observing that other parts of s 48 use “costs” and may operate differently. It expressed a view about s 49(4), but noted that s 49 did not apply to the case. That observation should not be mistaken for a determination of the operation of s 49.
Finally, the judgment does not resolve the broader policy tensions it identifies. It describes s 48 as problematic and notes that some expenses may be recoverable for successful applicants while successful respondents may not have an equivalent route under the provision. The decision interprets the enacted text; it does not remove those structural features.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
JADK BUILDERS PTY LTD ACN 602 692 080 v KUMAR & ANOR (Appeal) [2024] ACAT 88
Catchwords: APPEAL ‑- civil dispute - costs - section 48 of the ACT Civil and Administrative Tribunal Act 2008 - meaning of "fee" in section 48(2)(a)(ii) - "fee" means any disbursement incurred, but does not include professional fees charged by legal practitioners
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 48, 49
Legal Profession Act 2006 ss 16, 44, 84
Legislation Act 2001 ss 6, 132, 137(3), 139, 140, 141, 142(1)
Subordinate
Legislation cited: Court Procedures Rules 2006
Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue
Tribunal: Acting Presidential Member G Curtin SC
APPEAL TRIBUNAL: Acting Presidential Member G Curtin SC
I didn't allow the report from My Canberra Building Inspections, and sometimes those reports are allowed and sometimes not. Mainly because it wasn't a defect report, as such. It was useful evidence, but it wasn't a defect report, as such. No claim was made in regard to the Peak Consulting, so that didn't arise.
Sorry, ma'am, can I interrupt you, because the George [sic] Peak Consulting report should be admissible, because it was ordered by - requested by the [Builder] on the first hearing, that we bring the quotation and the court has ordered us to submit the report, so that's what we did. So therefore this - because we should not be, you know, bearing those charges, because we have - it was on the request for the [Builder].
The question is should I allow it or should I not. As I say, it's entirely discretionary. It's something that I might allow, particularly in this case where I've ordered that it be provided. ...
... But, as I said, it is a discretionary thing. It is the sort of thing that I might order, given that there was a - so, look, I am going to add in six thousand - it is a huge amount, I understand that, and this is very costly, but it was a cost that was necessary. It was necessary.
... So I'm going to allow that, but not allow the other one. So only one. You only need one, and that was the only one that was ordered.
In other words, and with respect as more succinctly put in Stead, all that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it is necessary for the respondent to establish that a properly conducted trial could not possibly have produced a different result.
There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration.
Ground 2 - section 48(2)(b)(ii) of the ACAT Act
The Respondent shall pay to the Applicants within 28 days the sum of $8,501.00 comprised of
(a) $170.00 for ACAT filing fee;
(b) $9.00 for company search;
(c) $200.00 for letter box not installed;
(d) $1,600.00 refund for architects fee;
(e) $500.00 for extra bidet points;
(f) $6,022.00 site inspection and defect report.
(1) The parties to an application must bear their own costs unless this Act or another territory law otherwise provides or the tribunal otherwise orders.
_(2) However - _
(a) if the tribunal decides an application in favour of the applicant, the tribunal may order the other party to pay the applicant--
(i) the filing fee for the application; and
(ii) any other fee incurred by the applicant that the tribunal considers necessary for the application; or
(b) if the tribunal considers that a party to an application caused unreasonable delay or obstruction before or while the tribunal was dealing with the application - the tribunal may order the party to pay the reasonable costs of the other party arising from the delay or obstruction; or
(c) subject to section 49, if a party to the application contravenes an order of the tribunal - the tribunal may order the party to pay the costs or part of the costs of the application to the other party; or
(d) if the application is an application for review of a decision under the Heritage Act 2004, the Planning Act 2023 or the Urban Forest Act 2023, and the tribunal makes an order under section 32 (2) (Dismissing or striking out applications) - the tribunal may order the applicant to pay the reasonable costs of the other party arising from the application.
Note A legal expense relating to a proceeding in the tribunal may be recoverable as a debt under the Unit Titles (Management) Act 2011, s 31.
(3) For subsection (2) (d), reasonable costs of the other party arising from the application include reasonable legal costs but do not include holding costs.
_(1) An example in an Act or statutory instrument - _
(a) is not exhaustive; and
(b) may extend, but does not limit, the meaning of the Act or instrument, or the particular provision to which it relates.
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. (Citations omitted)
... Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy....
[32] The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.
[33] Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. "Mischief" is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.
[34] This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight.
[35] The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen, it was necessary to reiterate that the question of whether there had been a "substantial miscarriage of justice" within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation.
[36] These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.
[37] None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular case, "if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance". When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.
The principles of interpretation were not in issue on the hearing of the appeals. In assigning legal meaning to the words of a provision, the court starts with consideration of the ordinary and grammatical meaning of the words taking into account both context and legislative purpose. Consideration of context in its widest sense and the purpose of the statute informs the interpretative task throughout. That consideration, and the consequences of giving a provision its literal, grammatical meaning, may lead the court to adopt a construction that departs from the ordinary meaning of the words.
(1) The parties to an application must bear their own costs unless this Act otherwise provides or the tribunal otherwise orders.
_(2) However - _
(a) if the tribunal decides an application in favour of the applicant - the tribunal may order the other party to pay the applicant the filing fee for the application; or
(b) if the tribunal considers that a party to an application caused unreasonable delay or obstruction before or while the tribunal was dealing with the application - the tribunal may order the party to pay the reasonable costs of the other party arising from the delay or obstruction; or
(c) subject to section 49, if a party to the application contravenes an order of the tribunal - the tribunal may order the party to pay the costs or part of the costs of the application to the other party.
Provides that the parties must bear their own costs unless this Act or the tribunal otherwise orders:
(1) The tribunal may award costs against a party for contravening an order under section 48 (2) (c) only if satisfied that it is in the interests of justice to do so.
(4) Costs are payable in accordance with the scale of costs in the rules under the Court Procedures Act 2004 applying in relation to the Supreme Court.
(d) if the application is an application for review of a decision under the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005, and the tribunal makes an order under section 32 (2) (Frivolous and vexatious applications) - the tribunal may order the applicant to pay the reasonable costs of the other party arising from the application; or
(3) For subsection (2) (d), reasonable costs of the other party arising from the application include reasonable legal costs but do not include holding costs.
78. Those amendments made explicit that "reasonable legal costs" were able to be awarded for the types of cases mentioned in section 48(2)(d) that were held to be frivolous and vexatious.
Section 48 of the ACAT Act provides the general rule that parties before the ACAT must bear their own costs, except in certain circumstances (such as where a party causes unreasonable delay or obstruction). The amendment inserts a new section 48(2)(d) to enable the tribunal to make an order for reasonable costs (except holding costs) where the tribunal considers that the application is a frivolous and vexatious application for the administrative review of a decision under the Heritage Act 2004, the Planning and Development Act 2007, and the Tree Protection Act 2005). This change is intended to ensure certainty in relation to these types of reviews (consistent with section 22P of the ACAT Act which provides that the tribunal must decide applications under these Acts within 120 days after the day the application is made).
Question 1: Does ACAT have power to make costs orders under section 48 of the ACAT Act apart from the power to make costs orders of the kinds specified in section 48(2) in the circumstances specified in section 48(2)?
Answer: No. ACAT's only powers to make costs orders are found in section 48(2) of the ACAT Act and any other applicable legislative provisions.
(a) if the tribunal decides an application in favour of the applicant, the tribunal may order the other party to pay the applicant--
(i) the filing fee for the application; and
(ii) any other fee incurred by the applicant that the tribunal considers necessary for the application; or
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, section 126 and section 132).
The bill will also amend the ACT Civil and Administrative Tribunal Act 2008, following a recent ACT Supreme Court ruling on costs, to clarify that the tribunal has power to award incidental costs, other than the filing fee for the application. If the tribunal decides an application in favour of the applicant, it is only fair that the tribunal is able to award other incidental costs, which the applicant has incurred, in bringing the application before the tribunal. I am proposing therefore an amendment to section 48(2)(a) to allow the tribunal to award costs including any other fees incurred by the applicant that the tribunal considers necessary for the application. These other fees would include, for example, company or business name search fees, subpoena filing fees or hearing fees.
This clause clarifies that when the Tribunal decides an application in favour of the applicant, it can award incidental costs of an application against the other party. Incidental costs may include application filing fees, business name search fees, subpoena filing fees and hearing fees.
[75] Generally speaking under the ACT Civil and Administrative Tribunal Act 2008, each party is responsible for his or her own costs. Section 48 of the Act provides:
[76] The Tribunal concludes that the Clients have been at least partially successful in their application and consequently the Tribunal awards them $159 in respect of the filing fee.
[77] The Clients also seek the costs associated with Mr Leary's report ($1980).
[78] Section 48(2)(a) of the ACT Civil and Administrative Tribunal Act 2008 was amended in 2014 by the Courts Legislation Amendment Bill 2013.
[79] Prior to that time, ACAT could only award the application fee to a successful applicant. However, people particularly in the civil jurisdiction are faced with other compulsory government fees in order to access justice, such as a fee for an ASIC search, which we require clients to provide if, for example, they are making a claim against a company, and hearing or subpoena fees.
[80] The amendment was intended to allow those other fees to be reimbursed.
[81] However, there was no suggestion or intention that a party could claim a 'disbursement' such as expert witness expenses, although sometimes these are referred to as witness 'expenses or fees'.
[82] The explanatory statement to the amendment provided:
This clause clarifies that when the Tribunal decides an application in favour of the applicant, it can award incidental costs of an application against the other party. Incidental costs may include application filing fees, business name search fees, subpoena filing fees and hearing fees.
[83] The word 'fee' was used intentionally, instead of a broader word 'costs' or 'expenses' to try to distinguish from other kinds of costs or expenses which would ordinarily be considered disbursements.
[84] As a consequence the Tribunal is unable to make an award in the terms sought by the Clients and this portion of their claim is dismissed.
In this case, the Tribunal accepts the reasoning in Burton and dismisses the claim by the applicants for re-imbursement of costs for experts' reports and the Australian Standard. In the Tribunal's view, the costs of expert reports and the Australian Standard are disbursements incurred by the applicants to prove their case and are not fees. However, the Tribunal accepts the applicants' claim for reimbursement of the filing fee ($159.50), the subpoena fee ($44), and the ASIC search fee ($9).
The Appeal Tribunal considers that the transcript fee is necessary under section 48(2) of the ACAT Act because it was necessary to obtain a transcript to properly scrutinise the first instance decision.
[46] The tribunal is a "no cost" jurisdiction. Section 48 of the ACAT Act provides that:
[47] Section 48(1) of the ACAT Act makes it clear that the parties to proceedings must bear their own costs unless otherwise provided by the Act. There are few exceptions, but only one is possibly relevant in this case.
[48] Under section 48(2), the tribunal has a discretion, where the applicant in a claim or counterclaim is successful, to order the other party to pay certain "expenses" of the application.
[49] In Burton v Rojas Constructions Pty Ltd (Burton), the Tribunal considered whether the cost of an expert report, paid for by the successful party, should be re-imbursed:
[Paragraphs [78]-[83] of Burton were then quoted]
[50] Applying the reasoning in Burton, the expert report of Mr Turl is a disbursement and not a "fee", and no order can be made for its recovery under section 48(2).
[51] There may be some cases where a report will fall within the claim for compensation, whether as loss suffered or rectification costs. For example, a callout fee for an appropriate professional to identify and repair a defect may be form part of the claim, as it is a reasonable and unavoidable loss incurred in remedying the breach. However, the Turl Report is clearly an expert report prepared for the purpose of dispute resolution, if not legal action, and used by the respondents to formulate and prove their case. It is the kind of cost that section 48 is intended to exclude. That the cost of the report was "reasonable" does not give the Tribunal to power to award it. The award of compensation for the report was contrary to the requirement that parties pay their own costs, as set out in section 48 of the ACAT Act. The Original Tribunal was in error in awarding this sum, and that aspect of the decision must be set aside.
The tenants seek their printing costs for bringing this application. ACAT is a no costs jurisdiction and only under very specific circumstances as outlined in section 48 and rule 103, does the Tribunal award costs or expenses. These circumstances do not meet the requirements of section 48 or rule 103. The application for payment of printing costs is dismissed.
Parties may employ lawyers (barristers or solicitors) to represent them in a proceeding. These lawyers usually charge their clients for their services (fees) and expenses that they have paid on the client's behalf (disbursements). Disbursements may include court fees. Together these charges are known as costs.
... to ensure that access to the tribunal is simple and inexpensive, for all people who need to deal with the tribunal...
[1] Pye v Registrar, Domestic Animals Act 2000 [2023] ACTSC 247 at [87]- [98]
[2] Reported as CIC Australia Ltd v Australian Capital Territory Planning and Land Authority [2013] ACTSC 96; (2013) 277 FLR 26
[3] Federal Court of Australia, 'Forms, Fees & Costs - Legal Costs' https://www.fedcourt.gov.au/forms-and-fees/legal-costs#:~:text=These%20lawyers%20usually%20charge%20their,charges%20are%20known%20as%20costs
JADK BUILDERS PTY LTD ACN 602 692 080
KUMAR & ANOR
(2013) 277 FLR 26
The appeal was dismissed. The orders made by the Original Tribunal on 26 April 2024, including the $6,022 award for the Peak Consulting site inspection and defect report, remained undisturbed.
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