These reasons concern the costs application of the respondent.
For the following reasons, the application is dismissed.
[2]
Background
At the time of the hearing of this application, the applicant/tenant was in possession of residential premises owned by the respondent/landlord. The tenant had occupied those premises subject to a residential tenancy agreement.
On 12 June 2018, in matter RT 18/24500, the Consumer and Commercial Division of the Tribunal made orders for termination of the residential tenancy agreement, possession of the premises, and the payment of rental arrears. Initially, the order was suspended until 26 June 2018. It remained further suspended by reason of the orders of 1 August 2018 which had the effect that the suspension lapsed at 5pm on 3 August 2018.
By application filed 3 August 2018, the applicant sought to set aside or vary the order for possession made on 1 August 2018. The grounds identified in the application were:
"The decision was made in my absence which resulted in my case not being adequately put to the tribunal".
The matter was listed for hearing on 10 August 2018. There was no appearance by the applicant. Nor did he respond to a telephone call. The respondent was represented by Mr Cuoco. He asked me to dismiss the set aside application.
I did so, and gave oral reasons. In summary, I dismissed the application as the applicant's recourse to cl 9 of the Civil and Administrative Tribunal Regulation 2014 was misconceived. Clause 9 is the additional power of the Tribunal to set aside or vary decisions determining proceedings. The clause provides, in addition to any power that is expressly conferred on the Tribunal by the Civil and Administrative Tribunal Act 2013 (NSW) or the enabling legislation, that the Tribunal may order that a decision that it has made that determines proceedings be set aside or varied in either of the following circumstances:
1. if both parties consent (cl 9(1)(a)).
2. if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal (cl 9(1)(b)).
I found that neither limb applied to the application. As to cl 9(1)(a), there was no evidence of consent which might satisfy cl 9(1)(a).
Nor was the decision made in the absence of the applicant (cl 9(1)(b)). As I explained in my reasons, I listened to the sound recording and Mr Kadsielski was present on the day that the Appeal Panel made its order on 1 August 2018. This was also confirmed to me by Mr Cuoco.
Accordingly, as cl 9 could not possibly apply, I dismissed the application to set aside the order of 3 August 2018.
It is in those circumstances the respondent now makes its costs application.
[3]
Principles
The relevant provision of the Civil and Administrative Tribunal Act 2013 (NSW) dealing with costs is s 60. That section relevantly provides:
(1) Each party to proceedings in the Tribunal is to pay the party's own costs.
(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.
(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(d) the nature and complexity of the proceedings,
(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,
(f) whether a party has refused or failed to comply with the duty imposed by section 36 (3),
(g) any other matter that the Tribunal considers relevant.
This section has been considered in many cases. The relevant principles include the following.
First, special circumstances are circumstances that are out of the ordinary, they do not have to be extraordinary or exceptional: see for instance CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21. It suffices if the circumstances are "out of the ordinary": Ingate v Andrews [2018] NSWCATAP 170.
Secondly, each case depends upon on its own particular facts: Gizah Pty Limited v AXA Trustees Limited (No. 2) [2001] NSWADT 164, and will depend on the circumstances of the individual case: Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152.
Thirdly, 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.
[4]
Consideration
In summary, the respondent makes the simple submission that, the application was frivolous or vexatious or otherwise misconceived or lacking in substance, and relies on s 60(3)(e) to found a costs order.
In addition, the respondent attaches an invoice in the sum of $1,100.00 preparation and appearing at the directions hearing of 10 August 2018, including preparing written submissions, reviewing the appellant's rental ledger, filing submissions and preparing a statutory declaration.
No submissions were received from the applicant, despite being directed to do so.
I accept that the applicant's application was misconceived and lacking in substance. However, in the exercise of my discretion, I decline to award costs in the circumstances of this matter.
First of all, the appellant was not represented, was no doubt anxious to avoid the execution of a warrant by the respondent to obtain vacant possession of the premises. It is perhaps understandable that his application might be misconceived.
Secondly, the starting position is that parties are expected to conduct their own proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 45(1). That section provides that a party to proceedings in the Tribunal has the carriage of the party's own case and is not entitled to be represented by any person. That section applies equally to both parties. I note that the respondent has to be represented by someone. Landlords, such as the respondent, are generally represented by the real estate agent managing their property, not their legal representative.
Thirdly, the existence of any of the circumstances identified in s 60(3) does not necessarily mean that costs should be awarded. It is always a question of degree: Ingate at [18].
Fourthly, I note that in other cases where an appeal has been held to be incompetent, costs have not been awarded: Owners - Strata Plan No. 47027 v Peter Clisdell Pty Ltd (No. 2) [2018] NSWCATAP 46. A similar position has prevailed where appeals have been withdrawn: see for example Durran t/a Canberra Sheds and Outdoor Storage v Bliss [2018] NSWCATAP 43; Military Tours Australia Pty Ltd v Samuels [2015] NSWCATAP 229. That said, as noted, each case turns on its own facts and circumstances.
Fifthly, It must also be remembered that the fundamental rationale for the awarding of costs is that such an award is compensatory, not punitive: Latoudis v Casey (1990) 170 CLR 534 at 543; Oshlack v Richmond River Council (1998) 193 CLR 72 at 97. I hold some reservations that, in the circumstances of a tenant being ordered to leave his premises, an award of costs may carry a punitive connotation or effect.
In the exercise of my discretion, I decline to order the applicant to pay the respondent's costs.
[5]
Order
1. The respondent's application for costs is dismissed.
[6]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 19 September 2018
Parties
Applicant/Plaintiff:
Kadsielski
Respondent/Defendant:
Guca 1 Pty Ltd
Legislation Cited (2)
Civil and Administrative Tribunal Regulation 2014(NSW)