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[2026] NSWCATOD 93
NCAT Occupational
2026-07-02
Seiden SC DCJ, Deputy President
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Medium Neutral Citation: Jali Local Aboriginal Land Council v Anderson; Jali Local Aboriginal Land Council v Hickling (nee Roberts); Jali Local Aboriginal Land Council v Anderson; Jali Local Aboriginal Land Council v Anderson (No 3) [2026] NSWCATOD 93
Hearing dates: On the papers
Date of orders: 2 July 2026
Decision date: 02 July 2026
Jurisdiction: Occupational Division
Before: Seiden SC DCJ, Deputy President
Decision: (1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), a hearing is dispensed with.
(2) The applications for costs are refused.
Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – Aboriginal Land Rights Act 1983 (NSW) – Costs – Special circumstances – Unnecessary disadvantage to other party – Unreasonably prolong proceedings – Strengths of each party’s claims – Nature and complexity of the proceedings – Costs refused
PRACTICE AND PROCEDURE – Costs – Admissibility of evidence – Application of s 67 of the Civil and Administrative Tribunal Act 2013, s 131 of the Evidence Act 1995 and s 10 of Sch 1 to the Civil and Administrative Tribunal Regulation 2022
General information, not legal advice.
Legislation Cited: Aboriginal Land Rights Act 1983 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Civil and Administrative Tribunal Regulation 2022 (NSW)
Civil and Administrative Tribunal Rules 2014
Cases Cited: Abdi v Abdi (No 2) [2022] NSWSC 582
Anchorage Capital Master Offshore Ltd v Sparkes (No 4); Bank of Communications Co Ltd v Sparkes (No 3) [2021] NSWSC 1695
Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152
Commissioner of Police, New South Wales Police Force v Parish [2025] NSWCATAP 180
Damjanovic v Maley [2002] NSWCA 230
Edwards v CohenHandler Pty Ltd (No. 2) [2017] NSWCATAP 81
FZK v Secretary, Department of Communities and Justice (No 4) [2025] NSWCATAP 278
Kaye v The Owners – Strata Plan No 4350 [2022] NSWSC 1386
Gallagher v Northern NSW Local Health District [2023] NSWCATAD 164
Herning v GWS Machinery Pty Ltd [No 2] [2005] NSWCA 375
Hertslet v Doherty; Doherty v Hertslet [2016] NSWCATAP 46
Houda v Seraphim (Costs) [2025] NSWCATAP 188
Isfahani v RACGP Regional Director of Training (South Eastern NSW) [2026] NSWCATOD 38
Jali Local Aboriginal Land Council v Anderson [2024] NSWCATOD 197
Jali Local Aboriginal Land Council v Anderson; Jali Local Aboriginal Land Council v Hickling (nee Roberts); Jali Local Aboriginal Land Council v Anderson; Jali Local Aboriginal Land Council v Anderson [2025] NSWCATOD 57
Jali Local Aboriginal Land Council v Anderson; Jali Local Aboriginal Land Council v Hickling (nee Roberts); Jali Local Aboriginal Land Council v Anderson; Jali Local Aboriginal Land Council v Anderson (No 2) [2026] NSWCATOD 18
Johnston v ANZ Banking Group Ltd & Ors; Johnston v Richardson & Ors [2004] NSWSC 363
Jubian v Clark (No 2); Clark v Jubian (No 2) [2016] NSWCATAP 153
Leichhardt Municipal Council v Green [2004] NSWCA 341
Mendonca v Tonna [2017] NSWCATAP 176
Mundine v Brown (No 7) [2011] NSWSC 170
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Rajski & Anor v Tectran Corporation Pty Ltd & Ors [2003] NSWSC 476
Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Re referral by Deputy Secretary, Local Government, under s 438HA of the Local Government Act 1993, concerning Mr Thaler, a Councillor [2025] NSWCATOD 102
Secretary, Department of Customer Service v Marino [2025] NSWCATAP 252
SHH Ltd v City of Parramatta Council; SHH Ltd v City of Parramatta Council (No 2) [2019] NSWCATAP 231
Sorrento Bathrooms and Kitchens Pty Ltd v Wei Huang Wang [2019] NSWCATAP 175
Thompson v Chapman [2016] NSWCATAP 6
Tony Azzi (Automobiles) Pty Ltd v Volvo Car Australia Pty Ltd (2007) 71 NSWLR 140; [2007] NSWSC 375
YWCA Australia v Chief Commissioner of State Revenue (No 2) [2021] NSWSC 102
Texts Cited: Nil
Category: Costs
Parties: 2024/00330280
Jali Local Aboriginal Land Council (Applicant)
Leeanne Anderson (Respondent)
2024/00330284
Jali Local Aboriginal Land Council (Applicant)
Lenkunyar Hickling (nee Roberts) (Respondent)
2024/00330296
Jali Local Aboriginal Land Council (Applicant)
Troy Anderson (Respondent)
2024/00330306
Jali Local Aboriginal Land Council (Applicant)
Teresa Anderson (Respondent)
Representation: Proceedings 2024/00330280, 2024/00330296, 2024/00330306
Solicitors:
Finn Roache (Applicant)
RHB and Associates Legal and Technical Consulting Services (Respondent)
Proceedings 2024/00330284
Counsel:
A Khoury (Respondent)
Solicitors:
Finn Roache (Applicant)
File Number(s): 2024/00330280
2024/00330284
2024/00330296
2024/00330306
Publication restriction: Nil
REASONS FOR DECISION
Dispensing with a hearing
Applicable law
The Tribunal’s power under s 60
Special circumstances
Whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings (s 60(3)(a))
Consideration in relation to an agent
Consideration in relation to the costs of preparing a Trial Book
Whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings (s 60(3)(b))
Consideration in relation to summons
Consideration in relation to mediation
Construction of relevant provisions
Admissibility of “Draft Heads of Agreement”
Admissibility of correspondence relating to post-mediation settlement negotiations
Conclusion on mediation
Consideration in relation to summary dismissal
Consideration in relation to offers of compromise
Admissibility of offers of compromise as to costs
Offers of compromise in an award of costs
Principles of an unreasonable refusal of a genuine offer of compromise
The first offer
The second offer
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 (s 60(3)(c))
The nature and complexity of the proceedings (s 60(3)(d))
Whether a party has refused or failed to comply with the duty imposed by section 36(3) (s 60(3)(f))
Weighing up all the factors
Cost of the ancillary proceedings
Conclusion that there are no special circumstances warranting an award of costs
Orders
On 11 February 2026, the Tribunal made a declaration, under s 69 of the Aboriginal Land Rights Act 1983 (NSW), that each of the respondents had vacated their office as a Board member of the Jali Local Aboriginal Land Council (the applicant): Jali Local Aboriginal Land Council v Anderson; Jali Local Aboriginal Land Council v Hickling (nee Roberts); Jali Local Aboriginal Land Council v Anderson; Jali Local Aboriginal Land Council v Anderson (No 2) [2026] NSWCATOD 18 (Decision).
The applicant seeks an order, in each proceeding, that the respective respondent pay its costs of the proceeding.
For the reasons that follow, the applications for costs are refused.
The applicant submitted that it was appropriate for this costs application to be determined in the absence of the parties because doing so accords with the principle that Tribunal proceedings are to be conducted in a manner which facilitates the just, quick and cheap resolution of the real issues in dispute.
The respondents did not object to the application being determined on the papers.
I am satisfied that the issues for determination can be adequately determined in the absence of the parties on the basis of the written submissions and material they have lodged. In so saying, I have had regard to the principles of open justice as discussed in Re referral by Deputy Secretary, Local Government, under s 438HA of the Local Government Act 1993, concerning Mr Thaler, a Councillor [2025] NSWCATOD 102 at [16].
(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.
“31 The usual rule is that a party is to pay their own costs of proceedings but, as the legislation makes clear, the Tribunal may make an order for costs if satisfied that there are ‘special circumstances’: s 60(2) NCAT Act.
32 Six leading principles are apposite.
33 First, special circumstances are circumstances that are out of the ordinary. It is not necessary to establish extraordinary or exceptional circumstances: see Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11] quoting Cripps v G&M Dawson Pty Ltd [2006] NSWCA 81 per Santow JA at [60]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32].
34 Secondly, the onus is on the party seeking an order for costs to satisfy the Tribunal that there are special circumstances warranting an award of costs in its favour: see McEwan v Port Stephens Council (No 2) [2022] NSWCATAP 386 at [38].
35 Thirdly, the Tribunal is to consider whether the circumstances are sufficient to amount to special circumstances that justify departing from the general rule that each party bear its own costs: BPU v NSW Trustee and Guardian (Costs) [2016] NSWCATAP 87 at [9]. The mere existence of one of the enumerated factors in s 60 of the NCAT Act will not of itself be sufficient to warrant the conclusion that there are special circumstances.
36 Fourthly, each case will depend on its own particular facts and circumstances: Brunsprop Pty Ltd v Joanne Hay and Wes Davies [2015] NSWCATAP 152 at [27].
37 Fifthly, mere success (or failure) of an application does not give rise to special circumstances: The Owners – Strata Plan 5319 v Price [2020] NSWCATAP 245 at [46].
38 Sixthly, the discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs*:* eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48].
39 Overall, what is required is for the Tribunal to exercise its discretion in a manner which is fair and reasonable having regard to the particular circumstances of a particular case.
40 The decision to award costs pursuant to s 60(2) of the NCAT Act involves, in effect, two decisions. The first is the Tribunal’s satisfaction that there are special circumstances warranting an award of costs. The satisfaction involves a degree of subjectivity and thus, in a broad sense, may be described as a discretionary decision (as described in respect of similar legislative provisions in a different statutory context in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at [20] per Gleeson CJ, Gaudron and Hayne JJ). If the Tribunal has regard to any matters as set out in s 60(3) of the NCAT Act, the matters must be given due weight.
41 As s 60(2) of the NCAT Act makes clear, if the requisite satisfaction is reached, the Tribunal ‘may’ make the order. Satisfaction as to the existence of special circumstances merely enlivens the discretion to award costs rather than mandating an award of costs: Al-Aaraj v Commissioner of Police, NSW Police Force (No 2) [2025] NSWCATAP 166 at [40]; Brodyn Pty Ltd v Owners Corporation - Strata Plan 73019 (No 2) [2016] NSWCATAP 224 at [32]. This necessitates the making of a second decision (which we term the overall discretion) as to whether in all the circumstances, an award for costs should be made.”
The applicant asserts that, notwithstanding the provisions of s 60(1) of the NCAT Act, “it has been held that the starting point for a costs award is still that a successful party should be entitled to the ‘usual order as to costs’”, relying on Thompson v Chapman [2016] NSWCATAP 6 (Thompson) at [69]. In essence, this is a submission that costs should follow the event and that, as the successful party in the substantive proceedings, the applicant is entitled to its costs.
However, Thompson concerned an appeal from the former Consumer, Trader and Tenancy Tribunal, the predecessor to NCAT’s Consumer and Commercial Division. As the Appeal Panel in Thompson notes at [68], r 38 of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules) applied, meaning that the rule as to costs under s 60(1) was displaced by a modified rule that “the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award” (NCAT Rules, r 38(2)). That modified rule does not apply in these proceedings.
The respondents, correctly, note that under s 60 of the NCAT Act, costs will only be awarded if the Tribunal is satisfied that there are special circumstances warranting an award of costs.
I proceed on the basis that s 60 of the NCAT Act is engaged.
The applicant submits that:
In the early stages of the proceedings, the respondents were assisted by Mr Oshlack, a self-described “researcher/advocate” in indigenous matters, who is not a qualified legal practitioner. Mr Oshlack was ultimately not granted leave by the Tribunal to act as agent in the proceedings, and the applicant submits that dealing with this issue caused it to incur unnecessary costs.
The applicant prepared a folder of materials for the Tribunal, which included materials of the applicant and the respondents and which was of assistance to the Tribunal (the Trial Book). This expense was solely borne by the applicant, as the respondents refused to split the costs.
The respondents submit that Mr Oshlack has considerable relevant knowledge and expertise and was a suitable agent, bearing in mind that Tribunal processes are designed for parties to be unrepresented. The respondents contend that by opposing the application, by three of the respondents, for Mr Oshlack to be granted leave to act as agent, the applicant “effectively made it impossible for any of the Respondents to participate in the Tribunal’s processes without being legally represented”.
In relation to the cost incurred by the applicant in preparing the Trial Book, the respondents submit that it was the applicant’s obligation to adequately prepare its case and not the respondents’ role to “subsidise” the applicant’s expenses.
As to the submissions relating to the proposed agent, it is notable that parties do not require leave, in proceedings such as these, to be legally represented: NCAT Act, Sch 5, cl 27. However, where they seek to be represented by a person who is not a lawyer, leave is required: NCAT Act, s 45. The term “agent” is not used in the NCAT Act, in this regard. The expression used in s 45 of the NCAT Act is “represented by a person” (other than an Australian legal practitioner). Nevertheless, the expression “agent” is often used by parties and taken to mean that the person referred to as “agent”, is not a lawyer but represents a party. That is how I use the expression “agent” here.
Where leave is sought by a party, to be represented by an agent, it is appropriate for the Tribunal to have regard to whether the person nominated to be the agent is a suitable person: Gallagher v Northern NSW Local Health District [2023] NSWCATAD 164 at [16], following Damjanovic v Maley [2002] NSWCA 230. The NCAT Rules, r 32(1), refer to the matters the Tribunal is to have regard to when considering an application under s 45 of the NCAT Act.
Accordingly, it is to be anticipated that, on occasion, a person will be nominated to act as agent and another party will object; or the Tribunal may, in any, event refuse leave, for that person to act as agent. The mere fact that an agent is proposed by one party and another party objects, does not of itself demonstrate that a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings.
Here, by order dated 12 December 2024, the four applications were to be heard and determined together. One respondent was legally represented from the outset and no agent was proposed. Ultimately, the same legal representation was secured for the remaining three respondents, and it was therefore not necessary for the Tribunal to make a decision regarding the suitability of the agent proposed, Mr Oshlack.
On occasion, in costs applications, it is appropriate for a decision maker to determine what the likely merits of a contention are, even though that issue was not determined in the substantive proceedings: Commissioner of Police, New South Wales Police Force v Parish [2025] NSWCATAP 180 at [54]. However, it is not always necessary or appropriate to do so: Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624; [1997] HCA 6.
In this case, the applicant did not direct the Tribunal to any material said to demonstrate, for the specific purpose of determining the costs application, that leave to allow Mr Oshlack to act as agent would, likely or inevitably, have been refused. Nevertheless, the interlocutory application objecting to leave, just referred to, was filed along with accompanying materials, prior to the commencement of the substantive proceedings.
As is plain from the Decision, the issues were complex, both factually and legally. On the face of it, the appointment of an agent with some litigation experience would have been a reasonable step, in the absence of legal representation, especially since all three respondents who were not yet legally represented were proposing to be represented by the same agent. The applicant does not cavil with that proposition. The objection was on the basis that Mr Oshlack was not a suitable choice, even though he was accepted to have had litigation experience.
In circumstances where the issues were factually and legal complex, I do not consider it appropriate to now determine whether the application for leave to allow Mr Oshlack to represent some of the respondents would have been refused. The application was properly made. With Mr Oshlack’s litigation experience, he was not, on the face of it, an unsuitable candidate, even if, which I accept, the applicant’s objection was genuinely made. In the circumstances just described, the application and the objection were an ordinary incident of the complex proceedings.
This factor does not tend in favour of there being special circumstances.
1. The applicant’s evidence and submissions in relation to the substantive application are to be filed and served by 1 July 2025.
2. The respondents are to file and serve their evidence and submissions by 22 July 2025.
3. The applicant is to file and serve any reply evidence and submissions by 6 August 2025.
4. Within the next 7 days, the parties are to provide to the Registry mutually convenient dates for a hearing of 3 days in August.
Each party was responsible for providing the Tribunal with their submissions and materials.
The applicant provided the Tribunal with the Trial Book. The Trial Book was a compilation of the materials and submissions filed by all the parties. It was certainly very convenient for the Tribunal to have a working copy of these documents in one place.
Nevertheless, I reject the applicant’s submission that the fact that the respondents have chosen not to share in the costs of the preparation of the Trial Book, is a matter that is suggestive of special circumstances. The preparation of the Trial Book was not brought about by the conduct of the respondents. It was an ordinary incident of the proceedings and appropriate given the complexity of the proceedings.
Nonetheless, I also reject the respondents’ submission to the extent that they suggest costs are not “subsidies” if that suggests costs are not “compensatory”. Costs are indeed compensatory, not punitive: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [67].
This factor does not tend in favour of there being special circumstances.
The applicant relies on the following matters:
On 4 November 2024, the respondents applied for a summons to be issued to the applicant. The applicant sought for the summons to be set aside and the Tribunal set aside the summons in part. The applicant submits that having to respond to this interlocutory issue unreasonably prolonged the completion of the proceedings.
In February 2025, the parties attended mediation and a “Draft Heads of Agreement” was thereafter circulated. The applicant contends the respondents later sought to vary the agreement, by adding a matter which was not discussed at mediation. The applicant submits this was a “tactic” deployed by the respondents to “torpedo” the agreement reached at mediation, which unnecessarily prolonged the proceedings in requiring the matter to proceed to a full hearing.
The respondents lodged an application for summary dismissal, which was dismissed by the Tribunal on 15 May 2025. The applicant submits the application was another interlocutory step taken by the respondents to delay a final determination of the matter.
The respondents unreasonably rejected two offers of settlement; one made before the final hearing and one made after the Decision was delivered.
The respondents submit:
In relation to the summons, the primary purpose was to ascertain whether minutes existed for the meetings which were in contention in the substantive proceedings. The summons therefore had a legitimate forensic purpose.
The additional matter raised after mediation was necessary to correct a public assertion of the applicant which was “wrong in both fact and law” and was a “natural corollary” of the mediated “resolution”. I pause to note that the respondents do not, in terms, state that an agreement was reached.
The respondents brought the summary dismissal application to curtail the proceedings and clarify the facts and issues in dispute. The respondents contend that at the time the summary dismissal application was heard, there were “fundamental deficiencies” in the applicant’s case.
The respondents did not unreasonably refuse the offers of settlement. It would have been inappropriate for the respondents to accept an offer before the hearing, when there were significant issues in dispute. As to the offer to settle costs made after the Decision was published, the respondents contend that the offer did not include a breakdown of the overall figure proposed by the applicant, nor any special circumstances the applicant would rely on in a costs application.
I consider the above submissions under the following headings:
Summons
Mediation
Summary dismissal application
Offers of compromise
The respondents issued a summons which the applicant sought to have set aside. Each party had some success: Jali Local Aboriginal Land Council v Anderson [2024] NSWCATOD 197. This was an ordinary incident of the complex proceedings.
This factor does not tend to suggest that there were special circumstances.
As a general proposition, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: NCAT Act, s 38(2).
However, notwithstanding that general rule, s 67 of the NCAT Act preserves certain privileges under the Evidence Act 1995 (NSW) and the common law. Section 67 provides:
67 Privileged documents
(1) Nothing in this Act requires the disclosure of a document if the Tribunal or President is satisfied that evidence of the document could not be adduced in proceedings before a NSW court by reason of the operation of any of the following provisions of the Evidence Act 1995—
(a) section 9 (Application of common law and equity), but only to the extent that it preserves any privilege against the adducing of evidence,
(b) section 10 (Parliamentary privilege preserved),
(c) Part 3.10 (Privileges) of Chapter 3.
(2) In this section—
disclosure of a document includes the following—
(a) the provision of copies of the document,
(b) the granting of access to the document,
(c) the disclosure of the contents of the document.
document includes a part of a document.
NSW court has the same meaning as in the Evidence Act 1995.
131 Exclusion of evidence of settlement negotiations
(1) Evidence is not to be adduced of—
(a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute, or
(b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.
(2) Subsection (1) does not apply if—
…
(h) the communication or document is relevant to determining liability for costs
…
(3) Subject to this Schedule, section 9(2)—
(a) evidence of a statement or admission made in a mediation session is not admissible in legal proceedings before a court or other body, and
(b) a document prepared for the purposes of, or in the course of, or as a result of, a mediation session, or a copy of the document, is not admissible in evidence in legal proceedings before a court or other body.
“Mediation session” is defined to include “any steps taken in the course of making arrangements for the session or in the course of the follow-up of a session” (the Regulation, Sch 1, s 10(5)).
Section 9(2) of Sch1 to the Regulation concerns evidence that is admissible when seeking orders to give effect to an agreement arising out of a mediation session.
On its face, s 10(3) imposes a blanket prohibition on the admission of a document prepared for the purposes of, or in the course of, or as a result of, a mediation session, unless the exception in s 9(2) of Sch 1 to the Regulation applies. The exception in s 9(2) does not, here, apply.
This conclusion is not affected by s 67 of the NCAT Act read in conjunction with s 131 of the Evidence Act, as discussed above because those sections do not provide an exemption to s 10(3); rather they provide a further basis upon which documents may be inadmissible.
There do not appear to be any Tribunal decisions which have closely considered the scope of s 10 of Sch 1 to the Regulation. However, s 10 is in similar terms to s 30 of the Civil Procedure Act 2005 (NSW).
The interaction between s 131 of the Evidence Act and s 30 of the Civil Procedure Act has been considered by the Supreme Court on a number of occasions.
In Tony Azzi (Automobiles) Pty Ltd v Volvo Car Australia Pty Ltd (2007) 71 NSWLR 140; [2007] NSWSC 375 at [12] and [18], Brereton J relevantly found that s 131(2)(h) of the Evidence Act:
“… does not make every offer of settlement that may be relevant to a question of costs admissible; rather, it removes, in the case of such offers, the bar to admissibility otherwise imposed by s 131(1). It is only that bar, and not any other bar, that it removes. In particular, it does not remove the bar imposed by the Civil Procedure Act, s 30(4).
…
Another way of looking at it is that, while the Evidence Act contains a general provision excluding evidence of settlement negotiations, with an exception to that general exclusion where the negotiations are relevant to costs, the Civil Procedure Act, s 30(4), is a more specific provision directed specifically to negotiations in a mediation session, excluding evidence of such negotiations, without any corresponding exception. When it applies, the later and more specific provision prevails over the more general one.”
“to avoid the very thing that is occurring in this case; that is that instead of the mediation affording a haven from litigation in which parties may negotiate frankly and informally towards settlement of their dispute, the mediation itself becomes yet another area of conflict generating another whole set of proceedings in court.”
“The rationale behind maintaining the sanctity of what occurs at a mediation is clear: parties must feel free to negotiate in the confident expectation that nothing that is said or done within a mediation can be used at a later time to their disadvantage in the proceedings if they are not resolved. No part of that reasoning applies to the right or the entitlement of any party at any time outside the context of the mediation to communicate settlement offers and responses on without prejudice terms save as to the question of costs. This applies equally to offers of compromise in accordance with the rules or Calderbank offers as generally understood. Reference to such offers is not embargoed by legislation or in any other way at all.”
In Anchorage Capital Master Offshore Ltd v Sparkes (No 4)**; Bank of Communications Co Ltd v Sparkes (No 3) [2021] NSWSC 1695 (Anchorage Capital), Ball J held that an offer of compromise made when the mediation session had adjourned did not fall within the scope of s 30(4) of the Civil Procedure Act.
In Johnston v ANZ Banking Group Ltd & Ors; Johnston v Richardson & Ors [2004] NSWSC 363 at [22], Grove J said, in relation to an earlier iteration of s 30, to similar effect:
“…I do not construe s 15(2) as forbidding the admissibility of a document evidencing an agreement reached at a mediation session. I would construe ‘follow-up’ of a mediation session to refer to matters concerned with steps towards reaching agreement as distinct from evidence of an agreement already reached. Simply because, for example, a document recording the agreement is prepared after the mediation session is over, does not categorize it as ‘follow-up’ in the relevant sense.”
The applicant seeks to rely on a document titled “Draft Heads of Agreement” and marked “Mediation in Confidence”, which is Annexure D to its Outline of Submissions lodged on 26 February 2026. In order to rely on that document, the document must be capable of being received in evidence in the application for costs.
The applicant submits that, following the two days of mediation on 6 and 17 February 2025, the Mediator provided, in the applicant’s words, a “draft Heads of Agreement”. In its terms, it reflects that “full agreement” has been reached between some parties, and a general agreement reached with one party “subject to some outstanding and unresolved issues between them”. It also referred to a further mediation with regard to some issues.
The applicant submits that the respondents subsequently sought to include a matter in the Draft Heads of Agreement which was not discussed in the mediation (amendment of the annual report). The applicant has annexed two pieces of correspondence between the applicant and the respondents (Annexures E and F) said to demonstrate this. I consider the admissibility of Annexures E and F on the costs application below. However, I receive them on the preliminary question of whether the Draft Heads of Agreement evidences an agreement reached at mediation or a separate offer of compromise; which, on the authorities described above, would make the document admissible.
However, Annexures E and F do not speak, in terms, of agreements having been reached at the mediation, only of amendments to the Draft Heads of Agreement. Annexure E indicates problems with the proposed further mediation mentioned in the Draft Heads of Agreement, and specifically identifies a course said by the applicant to “be sufficient to address any ongoing issues”.
Further, the applicant does not, in terms, contend that the Draft Heads of Agreement was a finalised agreement; and refers to the document as a “draft”.
As the matter actually progressed to hearing, on the basis that the Tribunal was required to make the declarations sought, it is apparent that no agreement had been reached. The parties were continuing to negotiate. The Draft Heads of Agreement was a step towards reaching agreement, following the mediation. It follows that the Draft Heads of Agreement was prepared as a result of two mediation sessions and that s 10(3) precludes the applicant from relying on the document, even for the purposes of the costs application.
The document is inadmissible, and I do not take it into account, on the substantive question of whether there are special circumstances warranting an award of costs.
The applicant also seeks to rely on correspondence that passed between the parties in relation to amendments to the Draft Heads of Agreement, Annexures E and F discussed above. The correspondence is a letter sent by the applicant’s solicitors on 11 March 2025 to the respondents’ legal representatives and a letter in reply on 14 March 2025. Both letters are marked “without prejudice, save as to costs”.
These too are documents to which s 10(3) in Sch 1 to the Regulation applies, and s 9(2) does not. They continue the communication commenced at the mediation and as followed up by the Draft Heads of Agreement. They are documents, therefore, prepared in the course of the follow-up of the mediation sessions. They relate to changes sought to the Draft Heads of Agreement; including in relation to future steps which were to occur as a result of the mediation. Accordingly, these documents are inadmissible under s 10(3) in Sch 1 to the Regulation.
I do not find it appropriate, on an application for costs, to lay blame as to who was responsible for the delay in relation to the mediation or why the proceedings did not settle. No doubt this would require nuanced considerations. In any event, due to my admissibility rulings above, there is no material upon which I could be satisfied one way or the other.
This factor does not tend to suggest that there were special circumstances.
The summary dismissal application failed: Jali Local Aboriginal Land Council v Anderson; Jali Local Aboriginal Land Council v Hickling (nee Roberts); Jali Local Aboriginal Land Council v Anderson; Jali Local Aboriginal Land Council v Anderson [2025] NSWCATOD 57 at [51]. The mere fact that the summary dismissal application failed, did not, on the face of it, indicate the matter was unsuitable for summary disposal. As the reasons for decision demonstrate, the respondents contended that they had a knockout defence. To be successful, the applicant needed to demonstrate, amongst other things, that the respondents each failed to attend two consecutive meetings of the Board. The respondents contended that the meetings that they were said to have failed to attend, did not occur; for lack of a quorum. Therefore, they could not be found to have failed to attend a meeting that did not occur. This was in circumstances where there was no dispute that the meetings could not be opened for a lack of quorum: at [28].
The respondents’ arguments were not untenable. Nevertheless, there were many legal issues that could not be resolved on a summary dismissal and the summary dismissal application failed. There could be no dispute that the summary dismissal application contributed to a delay in finalising the proceedings and to additional costs.
Given the costs involved in proceeding to a final hearing, it was understandable that, where the respondents considered they had a knockout point, they should take this course. It was not unreasonable in the circumstances.
This factor does not tend in favour of special circumstances.
The applicants seek to rely on two offers of compromise: the first offer, made on 13 October 2025 (before the Decision was published) alongside the Anderson respondents’ letter of response dated 17 October 2025 (Annexures G and H), and the second offer, made on 17 February 2026 (after the Decision was published), along with the respondents’ letter of response dated 24 February 2026 (Annexures I and J).
Both of the applicant’s offers of compromise were marked “without prejudice save as to costs” and were styled as a Calderbank offer. They were not made in a mediation context.
The offers are admissible under s 131(2)(h) of the Evidence Act.
Before considering the two offers made by the applicant, it is apposite to set out the principles regarding the effect an offer of compromise may have on an award of costs.
There are two effects which an unreasonable refusal of a genuine offer of compromise might be said to have on an award of costs: the unreasonable refusal can amount to special circumstances for the purposes of s 60(2) of the NCAT Act (see for example Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152; Jubian v Clark (No 2); Clark v Jubian (No 2) [2016] NSWCATAP 153); and the unreasonable refusal may form the basis of an award of indemnity costs, after the unreasonable refusal of the offer (see for example Sorrento Bathrooms and Kitchens Pty Ltd v Wei Huang Wang [2019] NSWCATAP 175; Mendonca v Tonna [2017] NSWCATAP 176). The latter proposition is uncontroversial. The former proposition, that an unreasonable refusal of a genuine offer of compromise may constitute special circumstances under s 60(2) of the NCAT Act, especially in the context of administrative review proceedings (which I am here concerned with), warrants closer inspection.
The Appeal Panel noted in Edwards v CohenHandler Pty Ltd (No. 2) [2017] NSWCATAP 81 at [22]-[24] that the unreasonable refusal of a genuine offer of compromise is of “less relevance” where there is a requirement for the existence of special circumstances before the costs discretion is enlivened:
“22 The costs applicant’s letter of 12 November 2016 was a considered and closely reasoned attempt to bring the proceedings to an end, and foreshadowed an attitude to the issue of costs.
23 The reference in the letter to the issue of ‘indemnity costs’ is typical of a Calderbank offer made in the ordinary court system. The reference has less relevance to the present environment, where the base line rule is that a successful party is not entitled, merely by the fact of success, to a costs order. Something more must be present sufficient to amount to a ‘special circumstance’. However, the costs applicant’s basic point was clear enough. If the claim was withdrawn, there would be no ‘special circumstances’ application for costs, and if not withdrawn, the failure to withdraw the claim might be put forward as a ‘special circumstance’.
24 In our view, the letter of 12 November 2015 is a minor factor favouring a costs order on appeal.”
“Even if we were. That is a different issue from the issue of whether the conduct of the contractor was so unreasonable that he should be ordered to pay the homeowners’ costs following settlement.”
Additionally, the Tribunal may be satisfied the unreasonable refusal constitutes special circumstances, but find there to be special circumstances independent of the refusal. In SHH Ltd v City of Parramatta Council; SHH Ltd v City of Parramatta Council (No 2) [2019] NSWCATAP 231, which concerned the award of costs of an appeal from the Consumer and Commercial Division, the Appeal Panel found that the appellant’s unreasonable refusal of an offer of compromise constituted a special circumstance for the purpose of an award of costs, but was expressly satisfied that special circumstances existed independent of the offer (at [44]-[45]).
Accordingly, it is not a matter of course that an unreasonable refusal of a genuine compromise necessarily constitutes a special circumstance. This is consistent with the comments of Basten AJ, in Kaye v The Owners – Strata Plan No 4350 [2022] NSWSC 1386 at [70] (quoted in Secretary, Department of Customer Service v Marino [2025] NSWCATAP 252 at [6]), of the term “special circumstances” in s 60 of the NCAT Act as:
“Its scope and operation will depend heavily on the context in which it appears. A particular circumstance which appears to be special in one case may not be so in another. It is not a phrase which readily gives rise to appellate explication.”
A factor relevant to the context in which a genuine offer was made, and unreasonably refused, is the nature of the proceedings.
In Edwards v CohenHandler Pty Ltd (No. 2), the Appeal Panel noted at [21]:
“In litigation in the Tribunal especially cases with an element of commerciality, offers of compromise have been given weight in deciding whether there are special circumstances. For early examples in the predecessor Tribunal’s retail leases jurisdiction, see Alessa Pty Limited v Total & Universal Pty Limited [2001] NSWADT 150; Citadin Pty Ltd (No. 2) v Eddie Azzi Australia Pty Ltd & General Pants Co Pty Ltd [2001] NSWADTAP 31; and more recently, Charalambous v Yeung (No 2) (RLD) [2014] NSWCATAP 1.”
“Whether the offer is a compromise is difficult to assess in an administrative review context. This is particularly the case as, in order to succeed, an applicant in administrative review proceedings must generally satisfy certain legislative criteria. The argument is usually whether the applicant does or does not satisfy those criteria. While further evidence may demonstrate that an applicant does indeed meet the statutory requirements, it is rare that a decision maker will simply change their mind or offer a compromise based on the same set of circumstances.”
Having regard to the foregoing, there is some doubt that an unreasonable refusal of a genuine offer of compromise, in administrative review proceedings, will constitute special circumstances under s 60(2) of the NCAT Act.
Here, the applicant sought a declaration that a certain circumstance had come to pass. To speak in terms of compromising that position sits uncomfortably with the role of the Tribunal in this case.
Nevertheless, assuming that an unreasonable refusal is capable of constituting special circumstances in proceedings such as these, it is apposite to set out the principles of an unreasonable refusal of a genuine offer of compromise. I then turn to consider whether either, or both, of the letters of offer made by the applicant constitute special circumstances under s 60(2) of the NCAT Act.
“The public policy underlying the making of special costs orders in such circumstances is the interest in encouraging settlement of litigation and discouraging wasteful and unreasonable behaviour of litigants…”
Her Honour explained the principles at [21]-[30]. Relevant to this decision are the following requirements:
That the offer indicates (by express words or the circumstances) that it will be relied on for the purposes of costs, in the event it is not accepted and a judgment more favourable than the offer is achieved.
That the offer be a genuine offer of compromise.
The mere making of an offer of compromise and the achievement of a better result does not automatically result in a special costs order being made.
The party seeking to rely on the offer has the onus of demonstrating that its rejection was unreasonable in light of the terms of the offer and the surrounding circumstances.
Her Honour said at [29]-[30]:
“29 The factors to be taken into regard when considering whether the rejection or non-acceptance of the offer was unreasonable (summarised in Favotto at [20]-[30]) include: the stage of the proceeding at which the offer was received; the time allowed to the offeree to consider the offer; the extent of the compromise offered; the offeree’s prospects of success assessed as at the date of the offer; the clarity with which the terms of the offer were expressed; and whether the offer foreshadowed an application for indemnity costs in the event of the offeree rejecting it (see *Hazeldene’*s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298 at [25] per Warren CJ, Maxwell P and Harper AJA; Commissioner of State Revenue v Challenger Listed Investments Ltd (No 2) [2011] VSCA 398 at [8] per Buchanan and Tate JJA and Sifris AJA; Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 at [12] per Basten JA with whom McColl and Campbell JJA agreed).
30 Factors that have been found to be relevant in determining whether the rejection of a Calderbank offer was not unreasonable, and tending against such finding, have included: all relevant evidence not having been served at the time of the offer (Vale v Eggins (No 2) [2007] NSWCA 12 at [22] per Beazley JA); the full parameters of the dispute remaining uncertain at the time of the offer (Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 102; [2008] NSWCA 278 at [192] per Allsop P with whom Beazley and McColl JJA agreed); the offeror’s case changing after the making of the offer (South Eastern Sydney Area Health Service at [85] per Hunt AJA); the inclusion of conditions in the offer (Magenta Nominees Pty Ltd v Richard Ellis (WA) Pty Ltd (unreported, FCAFC, Spender, French and Lee JJ, 29 August 1995); and the issues in dispute in the proceedings being complex (MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (No 2) (1996) 70 FCR 236 at 242D per Lindgren J). (Other than the first, it is difficult to see that any of these factors is here applicable.)”
“Whether it was unreasonable for the offeree not to accept the offer depends on a number of factors including the following:
(a) the stage of the proceeding at which the offer was received;
(b) the time allowed to the offeree to consider the offer;
(c) the extent of the compromise offered;
(d) the offeree’s prospects of success, assessed as at the date of the offer;
(e) the clarity with which the terms of the offer were expressed;
(f) whether the offer foreshadowed an application for indemnity costs in the event of the offeree’s rejecting it.”
“Whether an offer is a genuine offer of compromise is to be answered objectively having regard to the particular circumstances of the case. In order to be a genuine offer of compromise, the offeror must give something away: Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358 at 368 per Giles J. However, what that something is depends on the circumstances of the case. In some cases, an offer to ‘walk away’ may be sufficient where, for example, the costs are substantial and the offeror’s prospects of success are good: Leichhardt Municipal Council v Green [2004] NSWCA 341 at [26] , [30] per Santow JA.”
“It is clear that an offer with no real element of compromise in it, which is designed merely to trigger the costs sanctions, will not be treated as a genuine offer of compromise. Thus an offer by a plaintiff demanding the full amount claimed was held not to be an offer of compromise attracting costs penalties: Tickell v Trifleska Pty Ltd (1991) 25 NSWLR 353. Rogers CJ Comm D concluded that the test was:
‘… whether in the totality of the circumstances, the offer by the plaintiff represented any element of compromise or whether it was merely, yet another, formally stated demand for payment designed simply to trigger the entitlement to payment of costs on an indemnity basis.’”
“The general approach adopted in this Court is that where an offer involves ‘no real element of compromise’ but merely ‘invites capitulation by the appellant’ it will not result in a variation of the usual costs order: see, eg, Townsend v Townsend (No 2) [2001] NSWCA 145 (Giles JA) at [5].”
By letter dated 13 October 2025 (the first offer) the applicant, in effect, invited the respondents to voluntarily resign their positions as Board Members, on a no admissions basis, to avoid the applicant seeking it costs. The offer was sent two weeks prior to the substantive hearing. By their response of 17 October 2025, the Anderson respondents, in effect, declined that invitation and invited the applicant to withdraw the proceedings to avoid further incursion of costs and suggested the parties each pay their own costs (the rejection). The applicant has not tendered evidence of a rejection by Ms Hickling; however it is apparent from the respondents’ submissions, and that the proceeding relating to Ms Hickling proceeded to hearing, that the offer was not accepted by her.
I have found that the first offer and rejection are admissible under s 131(2)(h) of the Evidence Act.
The intention to rely on the offer in a costs application in the event the offer was rejected, was expressly notified to the respondents. Ultimately, the applicant was successful in the substantive proceedings; and the applicant did better than their offer.
Here, the offer from the applicant, in practical effect, sought a complete capitulation from the respondents on the basis that costs would not be sought. The only aspect that could truly be considered a compromise is the offer not to seek costs. This is in circumstances where costs do not necessarily follow the event and special circumstances must first be demonstrated. In those circumstances, there is a real question in my mind whether the offer could be aptly described as a “genuine compromise”.
Nonetheless, if the offer is properly considered a “genuine compromise”, the question remains of whether its refusal constitutes special circumstances under s 60(3) of the NCAT Act. The applicant submits that the rejection of the offer speaks to special circumstances “given the outcome of the proceedings and that these matters could have been resolved well in advance of the hearing saving the parties unreasonable costs and the Tribunal its time in sitting”.
Even assuming the offer to be a genuine offer of compromise, I am not satisfied that it was unreasonable for the respondents to reject it. There are several reasons for this.
First, as mentioned in relation to the summary dismissal application, the issues were complex and novel. This was confirmed in the Decision, which details the highly nuanced legal arguments made by the parties.
Secondly, the timing of the offer. By the time the offer was made, the parties had already filed all of their materials, except for the Trial Book, which did not include any additional materials. The hearing date was two weeks away. It cannot be said that the refusal of the offer “prolonged unreasonably the time taken to complete the proceedings” (NCAT Act, s 60(3)(b)); to the contrary, the refusal of the offer had no effect in delaying the time taken to complete the proceedings (other than, the proceedings settling). The respondents’ refusal of the offer simply let the proceedings take their course.
Furthermore, the so-called offer was made at a stage when the evidence and contentions had not yet been tested. The applicant had not, at that point, fully articulated through oral argument and closing written submissions, the basis why the respondent’s defence was not sound, and it was reasonable for the respondents to want to test the applicant’s witnesses through cross examination. Indeed, there was a significant amount of time in the hearing spent on cross examination.
Thirdly, the nature of the proceedings. The substantive proceedings sought declaratory relief: the question was whether the respondents had vacated their offices, or not. It concerned the satisfaction, or not, of certain legislative criteria (Secretary, Department of Customer Service v Marino at [21]), and there was no element of commerciality (Edwards v CohenHandler Pty Ltd (No. 2) at [21]). The respondents were entitled to await the Tribunal’s determination of whether they had, already, vacated their offices. It was not unreasonable to reject an offer which required them to voluntarily resign from their positions. This was not necessary if the legislative criteria were satisfied, as they would have already vacated office; and not necessary if the Tribunal found the statutory criteria not to have been made out.
The first offer was not unreasonably rejected.
In the absence of unreasonable conduct in rejecting the offer, I find that the rejection was an ordinary incident of the proceedings, and does not amount to a special circumstance under s 60(3).
The applicant submits that the Decision demonstrates that the applicant’s claim was tenable.
The respondents submit they had a “legitimate right” to test the applications being made and that the Tribunal’s decision in the summary dismissal application demonstrated the respondents’ case had tenable bases in fact and law. The respondents also note that there were no precedents to rely on, as the substantive proceedings were the first proceedings brought for declaratory relief under the relevant provisions of the A**boriginal L**and R**ights A**ct.
The respondents also contend that even if the parties consented to the declarations, the Tribunal would still have needed to be independently satisfied that the evidence supported the making of the declarations.
As the Decision reveals, this was a complex case with nuanced factual contentions and legal arguments, some of which were very finely balanced. It could not be said that the respondents’ defence was untenable. True, the applicant was wholly successful, but this does not mean the defence was relatively weak. Further, to make the declarations sought, the Tribunal was, itself, required to be satisfied both as to the law and the facts, and was assisted by hearing the arguments from both sides.
To warrant a costs order, plainly, there must be more than, simply, that a winning party has won. Here, given the complexity, I find no special circumstances in any disparity between the strength of the arguments.
This factor does not tend in favour of special circumstances.
The applicant submits, while conceding that the proceedings were “somewhat complex”, that the matter could have been resolved at mediation.
The respondents submit that they were of the view that the matter had been resolved at mediation, subject to negotiations about the final wording of the Heads of Agreement, and that they were “blindsided” when the applicant announced at the following directions hearing that the mediation had failed.
Despite the respondents’ submission, as noted above, I am not satisfied on the evidence that there was an agreement reached. The fact that the proceedings continued, tends against any such conclusion.
Ultimately, in light of the discussion above concerning mediation and the inadmissibility of the evidence in this regard, blame for why the matter did not settle at mediation cannot be determined. Nor do I accept that ascribing blame is appropriate, when determining whether there were special circumstances, constituted by a failure to reach agreement at mediation.
This factor does not tend in favour of special circumstances.
36 Guiding principle to be applied to practice and procedure
…
(3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal—
(a) a party to proceedings in the Tribunal,
(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.
The applicant relies on the matters raised above, to prove that breach.
The respondents submit that “they have at all times acted in compliance with their obligations under this paragraph in testing the applications made on bases that they legitimately believed to be sound and with reasonable prospects of success in the absence of any guiding precedents”.
As already mentioned, the proceedings were complex. The mediation and the summary dismissal, in particular, each delayed the final determination of the proceedings. However, neither of these, nor the other factors already discussed, indicate that the respondents were delinquent in their duty to assist the Tribunal.
This factor does not tend in favour of special circumstances.
On 17 February 2026, the applicant sent a letter to the respondents, marked “without prejudice, save as to costs” and styled as a Calderbank offer (the second offer). I have found that the letter is admissible. In the second offer, the applicant stated that it had incurred $71,208.94 in costs and offered to settle the costs application “for a sum of $52,667.12 … equat[ing] to a saving of $18,541.82” for the respondents. The applicant contends that the offer’s rejection by the respondents prolonged the completion of the cost proceedings unnecessarily.
A decision concerning the award of costs is an ancillary decision: NCAT Act, s 4. The Tribunal may award costs in relation to proceedings, including ancillary decisions made in the proceedings.
The Tribunal in the Decision ordered that if a party to any of the four applications wishes to make an application for costs, the directions set out in Order 2 apply. The costs applicant was to give to the costs respondent and Tribunal any submissions and documents it sought to rely on in a costs application within 14 days of the Decision. The costs respondent was to put on submissions and documents in response within 14 days of receipt of the costs applicant’s materials, and the costs applicant would then have an additional 7 days from receipt of the costs respondent’s materials to put on any additional submissions.
The applicant foreshadowed in the email of 17 February 2026, which contained the second offer, that it would seek costs.
The respondents replied to the applicant on 24 February 2026, refusing the offer. The applicant subsequently applied for costs, in the manner envisioned by Order 2, on 26 February 2026.
The applicant contends that the respondents “knew or ought to have known the substance of the special circumstances which would sound in costs but rejected the genuine offer of settlement”. This is said to have unnecessarily prolonged the completion of the costs proceedings.
In relation to the first contention, in the letter of 17 February 2026, the application stated that the respondents should accept the offer because it represents a genuine compromise, and in order to prevent the incurrence of “any further and unnecessary costs”. The applicant did not specify the special circumstances under s 60(3) of the NCAT Act it intended to rely upon in making its claim for costs, which the respondents noted in their email in reply dated 24 February 2026.
I do not accept that the respondents, at that stage, either knew or ought to have known the substance of the contentions regarding special circumstances. The respondents had not yet had the benefit of reading the applicant’s submissions on costs. Further, it is far from clear what special circumstances the respondents ought to have apprehended. Whilst it may be reasonable for the respondents to have expected their summary dismissal application, which was dismissed, to have formed part of any submissions on costs, it is not reasonable to expect the respondents to apprehend that the applicant would seek to rely on the mediation, entered into by both parties in good faith, in seeking costs. That it is not clear what special circumstances the respondents “ought to have known” about, is further demonstrated by my findings above that there are no special circumstances as contemplated by s 60(2) of the NCAT Act.
Furthermore, the applicant’s letter of 17 February 2026 did not outline the basis upon which the figure of $71,208.94 was calculated. It is therefore not clear whether the figure represents costs calculated on what is frequently referred to as being a party/party basis, or whether the costs are solicitor/client costs.
It cannot be said that the respondents unreasonably rejected the offer. This is so, whether or not the applicant’s making of the offer to reduce costs sought, was a genuine offer of compromise.
Secondly, the applicant contends that the respondent’s refusal unnecessarily prolonged the costs proceedings. I do not see this to be the case, given that, notwithstanding the refusal, the parties were able to comply with the timetable contained in Order 2 of the Decision. True, the settlement would have avoided the Tribunal’s determination of the cost application and brought the proceeding to an earlier end; but not in a way that warrants finding there were special circumstances, by virtue of the respondents’ conduct.
Accordingly, there was nothing out of the ordinary to suggest that refusal of the second offer tends in favour of special circumstances.
For the foregoing reasons, there are no special circumstances warranting the award of costs.
The application for costs is refused.
**********
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
[2026] NSWCATOD 18
[1998] HCA 11
[2000] HCA 47
[2011] VSCA 398
(1998) 193 CLR 72
(1997) 186 CLR 622
(2007) 71 NSWLR 140
(2000) 203 CLR 194
(2005) 13 VR 435
(2008) 74 NSWLR 102
(1996) 70 FCR 236
(1991) 25 NSWLR 358
(1991) 25 NSWLR 353