//
[2026] NSWCATAP 12
General information, not legal advice.
NCAT Appeal Panel
2026-01-16
G Blake AM SC, Principal Member
Original judgment source is linked above.
"1 The Owners - Strata Plan 1731 must not later than 15 December 2025 cause the work referred to in items 2, 3, 4, 5, and 8 of Mr D. Drexler's Scope of work dated 29 July 2025 to be carried out in accordance with section 18B of the Home Building Act 1989."
(1) a notice of appeal in which she:
(a) challenged order 1 of the 29 September 2025 orders;
(b) set out the following ground of appeal:
"A Contract of Sale for 35/20 Illawong Avenue, Tamarama, was exchanged on July 31 2025.
This evidence was not available at the time of the last hearing in May 2025 and therefore it is "New Evidence".
Although I initially applied for the rectification order to NCAT in February 2024, I was unaware that the proceedings would not finalise until September 29. The situation regarding outstanding strata levies became more urgent due to the Strata planning to take debt collection action. The delay in court proceedings was exacerbated by the respondent and this was commented upon by the Senior Member, Mr David Goldstein in judgement.
I contacted the Registrar prior to making the decision to exchange, and was informed the Orders were in due process.
The Body corporate, the respondent, should not be prejudiced by the remedy now sought by the applicant, myself, to (balance obscured)"
(c) set out the following order the Appeal Panel should make:
"...
I request that Order one, an order to to repair the property, be amended to a monetary order for same or similar value and 2. an order be made to compensate for the applicant's financial loss due to selling the property in a damaged, parlous and un-repaired state, and the value of the compensation be the difference between the current sale price of $1.7 million dollars and the recent comparable sales in the building for one bedroom units that are fully functional, repaired and with compliance certificates."
(d) sought leave to appeal for the following reasons:
"The reason I am seeking to have Order I only, (the repair/rectification order) stayed, pending an internal review is that due to selling the property at a loss, in its damaged condition. But I sold to avoid debt collection and possible bankruptcy proceeding being taken against me by the Owners Corporation due to substantial debts of Strata levies (Quarterly levies, Special Levies, interest, late fees and debt collection fees). The debts were totalling over one million dollars with interest of several thousand per month, being compounded daily.
The urgent state of the financial costs and risks was new evidence.
I planned to sell after the repair, if my application was successful. However, the severe financial risks were increasing with no rectification resolution, so I made the decision to accept an offer so I could pay off my large levy debt on settlement. At the time of contract exchange, I contacted the Registrar and was told the decision was still pending.
In the meantime, The Strata Corporation was planning to take legal action against me and would not accept my payment plan proposed. I accepted an offer and exchanged on 31 July 2025. The property settlement will be held 23rd October.
I am seeking-to have Order 1, the rectification order, amended to a monetary order and am also requesting compensation for loss to be considered, due to the sale. The enforcement of the order would unfairly advantage the new owner as they agreed to pay a lower price due to the "parlous" condition of the property, and the vendor agreed to undertake the repairs themselves. The acceptance of the "as is" condition and the lower price, was agreed to in the sales contract."
(2) an application for a stay in which she sought a stay of order 1 of the 29 September 2025 orders (the stay application) for the following reasons:
"The reason I am asking to have this order stayed pending an internal review is that due to selling the property at a loss in its damaged condition to avoid bankruptcy proceeding being taken against me by the Owners Corporation due to substantial debts of Strata levies (Quarterly levies, Special Levies, interest, late fees and debt collection fees) totalling over one million dollars with interest being accrued daily.
The Strata Corporation was planning to take legal debt collection recovery action against me that would probably lead to a mortgagee sale, in due course. The Strata would not accept my payment plan.
For these reasons, I accepted an offer to sell and exchanged contracts on 31 July 2025. The property settlement will be held on 23rd October. I will be seeking to have the rectification order to be amended to a monetary order and also will be requesting compensation to be considered due to the sale at a low price due to parlous state of the property.
I did not expect the resolution to be so lengthy and prior to contract exchange, I contacted the Registrar and was told the decision did not have a definite date of completion.
The enforcement of the order would unfairly advantage the new owner as they agreed to pay a lower price and to undertake the repairs themselves.
II will be providing as evidence
1. Contract of sale noting the purchaser agreed to taking the property "as is" in damaged condition."
Whether a costs order, and if so what costs order, should be made in favour of OSP1731
(1) whether there are special circumstances warranting an award of costs in favour of OSP1731;
(2) if so, whether the discretion should be exercised to award costs;
(3) if so, what costs order should be made.
60 Costs
(1) Each party to proceedings in the Tribunal is to pay the party's own costs.
(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.
(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following -
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(d) the nature and complexity of the proceedings,
(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,
(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),
(g) any other matter that the Tribunal considers relevant.
(4) If costs are to be awarded by the Tribunal, the Tribunal may -
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.
costs includes -
(a) ...
(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
The applicable legal principles under s 60(2) of the NCAT Act
"[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."
"[52] An award of costs is intended to be compensatory and not punitive: Latoudis v Casey (1990) 190 CLR 534 at 567; [1990] HCA 59; Grasso v The Owners - Strata Plan No. 52399 [2022] NSWCATAP 91 at [12(6)]."
"[42] The interpretation of s 60(3)(c) of the NCAT Act was considered by the Appeal Panel in DYH v Public Guardian (No 3) [2022] NSWCATAP 34. The Appeal Panel stated at [20]-[22]:
"20 The Victorian case law considered an equivalent provision to s 60(3)(c) of the NCAT Act provides some helpful analysis. The Victorian Civil and Administrative Tribunal may also award costs if fair to do so having regard to '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' (Victorian Civil and Administrative Tribunal Act 1998 (Vic) ("VCAT ACT"), s 103(3)(c). The meaning and operation of s 103(3)(c) of the VCAT Act were considered by Senior Member Byard in Dennis Family Corporation Pty Ltd v Casey CC (Red Dot) [2008] VCAT 691. He said at [14] - [15]:
"The relative strengths of the claims appear to refer to the strength of claims of one party compared to the strength of the claims of another. A difficult, doubtful or test case might be necessary to clarify the legal position of the parties. It is probably seldom that an order for costs would be made having regard to this consideration alone where there was a real issue to be tried and real justification for the claims made on either side. I take it that it is generally where there is a very weak case for one side, or none at all, that this consideration is likely to lead to an order for costs. I note that the wording says that the absence of a 'tenable basis in law or fact' is a consideration included within the consideration of the relative strengths of the claims of the parties.
This certainly cannot mean that an unsuccessful party should be required to pay costs because, at the end of the case, that party's claims have been found to be untenable in fact or law to the extent that they were not upheld and were not successful. That would amount to 'costs following the event'. It would compromise the general rule created in s 109(1)."
21 The Senior Member also commented (at [19]) that '"untenable" in the context of s 109(3)(c) means something like so weak as to be unarguable, rather than merely weak'.
22 In our view, the Senior Member's observations apply with equal force to s 60(3)(c) of the NCAT Act."
[43] Special circumstances may be established because a claim is lacking in substance, even if such a finding was not expressly made in determining the substantive application, provided such a finding is not inconsistent with the reasons given for dismissing the application: Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135 (Zucker) at [52]."
"[44] In respect of s 60(3)(e) of the NCAT Act (whether proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance), the Appeal Panel has adopted the statement of Ipp JA in Owners Corporation - Strata Plan 4521 v Zouk [2007] 69 NSWLR 61; [2007] NSWCA 23 (Zouk) at [45], that "lacking in substance" means not "reasonably arguable". It is a meaning, his Honour held, not dissimilar to "frivolous, vexatious, misconceived": Zouk at [45], which has been applied to s 60 of the NCAT Act by this Tribunal: Zucker at [50].
[45] The words "frivolous" and "vexatious", used together, may signify that the application lacks a legal foundation or that it is "not legally properly based": Fox v Commissioner of Police, New South Wales Police Force [2016] NSWCATAD 77 (Fox v Commissioner of Police) at [26], quoting 601 Management Company Pty Ltd v Commissioner of State Revenue [2011] VCAT 2129 at [12], and Fox v Commissioner of Police at [28] citing Re Filsell and Comcare [2009] AATA 90 at [33]. The term "vexatious" "can include proceedings brought with the intention of annoying or embarrassing or harassing the other party, or for some collateral purpose other than having the court or tribunal adjudicate on the issues raised by the proceedings, or, irrespective of the motive of the litigant, if the proceedings are so obviously untenable or manifestly groundless as to be utterly hopeless": Re Filsell and Comcare [2009] AATA 90 at [33], cited in Fox v Commissioner of Police at [28]."
"[51] Although lack of representation can tip the balance against an award of costs, the Appeal Panel has noted that a party, including a self-represented party, does not have a "licence to use NCAT's proceedings to make scandalous allegations against an opponent": ZSJ v ZSK at [56]."
"Legal Principles
[52] The Court has the power to order costs under s 98 of the Civil Procedure Act 2005 (NSW). A successful party may have a "reasonable expectation" of being awarded costs (Oshlack v Richmond River Council (1998) 193 CLR 72; (1998) 152 ALR 83; [1998] HCA 11 at [22], [134]). Costs generally follow the event: UCPR Pt 42 r 42.1.
[53] However, the position is different where there has been no hearing and, therefore, no "event". Where there has been no hearing, so that the Court has not determined the merits, there may not be a party who has clearly won. The principles to be applied in such a case were set out by McHugh J in Lai Qin at pages 624-625 (citations omitted):
"In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order.
In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. ...
Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. ... But such cases are likely to be rare.
If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings."
[54] Davies AJA, with whom Mason P and Meagher JA agreed, said in Edwards Madigan Torzillo Briggs Pty Ltd v Gloria Stack [2003] NSWCA 302 that:
"[5] When proceedings are brought to an end without a determination after a trial, the judge may find it difficult, even impossible, to make an award of costs. If the judge does make an award, it will generally be because the judge is satisfied that one party has had a substantial victory and the other a substantial loss, or that there has been a marked difference in the reasonableness of the actions taken by the parties, so that one party should be rewarded for its reasonable actions and the other party should suffer a detriment in costs."
[55] This was quoted with approval by Payne JA in Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84 at [27]- [30]. In Nichols, the correct approach for considering unreasonable actions by a party was set out by Basten JA at [8]-[10]:
"[8] Secondly, although it is possible to make an order for costs against one party if it can be shown that it has invited the litigation by its unreasonable behaviour, or has unreasonably pursued the litigation, such an order should only be made where that judgment is manifest by reference to known circumstances, not in dispute between the parties. If the question cannot be answered without reviewing large swathes of evidence and resolving, on a tentative basis, disputed questions of fact, the task should not be embarked upon.
[9] ...Further, once there is a real dispute as to a significant fact in issue in the proceedings, it is inappropriate to determine that matter, other than in making an interlocutory ruling, by accepting one party's case without permitting the other party an opportunity to challenge the opposing party's witnesses.
[10] Once it becomes apparent that such a course is required, the hypothesis on which the examination was undertaken is negated and the inquiry should stop."
[56] For determining whether one party has capitulated for the purposes of determining costs, Burchett J in ONE.TEL v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270 at [6] said:
"[6] In my opinion, it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court's discretion otherwise than by an award of costs to the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs."
...
[58] In Xero Linear Lighting Systems NSW Pty Ltd v Benson [2024] NSWSC 916 at [82] and [108] I considered the policy reasons underlying these principles:
"[82] The approach to the question of costs which is derived from Lai Qin is both fortified, and independently required, by the Court's obligation to exercise its discretion in accordance with the overriding purpose. It is completely antithetical to the overriding purpose to allow arguments over costs to become substantial satellite hearings which require the Court to traverse contested matters that have otherwise been resolved by settlement...
[108] First, in general, to displace the outcome of there being no order as to costs the issues of unreasonable conduct or capitulation need to be demonstrable clearly and concisely by reference to uncontroversial facts. If complex submissions and large amounts of evidence are required, these are likely to be signs that the Court is being invited to descend into disputed facts and subjective analyses of parties' positions over the course of the litigation which Lai Qin and the overriding purpose in the CPA make clear the Court should not embark upon.
[109] Second, when negotiating a settlement parties will often be well advised to consider whether they should factor in their respective expended legal costs at an early stage of their settlement calculus as something they are likely to have to bear, rather than leaving the question of costs until after all other issues have been agreed."
Consideration
[59] As the principles I have set out above make clear, the starting point for making an order as to costs where there has not been a final hearing is that the parties should bear their own costs. While the exercise of discretion will turn on the facts of each case, in general to make a costs order against one of the parties in these circumstances, the Court must be satisfied of one of the following on clear and uncontested evidence:
(1) One party behaved so unreasonably in commencing or defending proceedings; or
(2) One party was almost certain to succeed on the interconvertible facts, which may be evidenced by the other party capitulating."
(1) Ms Karpinski's late withdrawal of her notice of appeal constitutes special circumstances within s 60(3)(a) of the NCAT Act. It was significantly disadvantaged "as it was forced to incur costs", as well as expend time and resources in replying to her applications. Further, the Appeal Panel should regard the late withdrawal as a capitulation. The Tribunal in proceedings in the Consumer and Commercial Division has previously has accepted that withdrawal of proceedings shortly before, or on the day of the hearing itself, amounts to special circumstances: Owners - Strata Plan 37763 v Campbell (No 2) (SC 23/13217, 28 August 2023, unreported) (Campbell (No 2)); Lehner v The Owners - Strata Plan 65870 (SC 22/28963, 14 December 2022, unreported) (Lehner);
(2) the appeal has no tenable basis in fact or law within s 60(3)(c) of the NCAT Act and was misconceived and lacking in substance within s 60(3)(e) of the NCAT Act because Ms Karpinski was wholly successful at first instance and she did not identify any error/s of law and/or question/s of law or any error/s of fact in the notice of appeal;
(3) the matters in paragraphs (1) and (2) also constitute special circumstances within s 60(3)(g) of the NCAT Act;
(4) in circumstances where there can be no suggestion of any disentitling conduct on its part the discretion should be exercised to make a costs order in its favour.
(1) there are no special circumstances warranting an award of costs. She made an early withdrawal of proceedings. Her appeal did not come to a determination by the Appeal Panel. The issues raised by her had merit;
(2) she did not conduct the proceedings in a way that unnecessarily disadvantaged OSP1731 which was not required to make substantive submissions in respect to the call over or the stay application and was not required to expend significant time and resources in replying to the notice of appeal;
(3) she did not unreasonably prolong the appeal. She discontinued her appeal only 14 days after filing it. The discontinuance was made at the first possible opportunity at the first call over and hearing of a stay application on 29 October 2025;
(4) she drafted and filed her notice of appeal on 15 October 2025 without legal assistance. She was aware of the time limit for filing appeals and was unable to get proper legal advice in the short time period. She was able to subsequently obtain legal advice and as a result discontinued her appeal at the first possible opportunity on 29 October 2025 at the first call over (14 days after filing the appeal). This was not a late withdrawal of the appeal;
(5) the appeal was not frivolous or vexatious. She had good reason for making the appeal due to the financial disadvantage of being unable to enforce order 1 of the 29 September 2025 orders. The making of the appeal was not unreasonable in all the circumstances;
(6) her appeal did not disadvantage OSP1731 which was not required to provide substantive evidence or to make substantive submissions on the appeal. OSP1731 has instituted its own appeal, which remains to be determined. The relief sought by OSP1731 in its appeal has far more significance than the relief sought in her discontinued appeal;
(7) as a result of the actions of OSP1731, she has experienced substantial and significant hardship. She was left with a home in an unrepaired and damaged state for several years, and was forced to sell her home of 27 years in a damaged state with no repairs or rectifications. During six years of homelessness, she lived in precarious accommodation in a rural area far from her home, due to the affordability of accommodation in her area and the significant economic impact. The attempt by OSP1731 to recover costs is another example of the pressure placed on a vulnerable disability pensioner with multiple health conditions, all of which were documented in the CCD proceedings;
(8) given her parlous financial situation any imposition of costs would cause her significant disadvantage and financial distress. On settlement, in October 2025, she discharged her debt of over $1,000,000 to OSP1731 notwithstanding it had damaged her property;
(9) the general rule that each party pay its own costs in order to promote access to justice and keep Tribunal proceedings less expensive compared to court litigation should be upheld particularly where there is a self-represented appellant.
The 3 December 2025 OSP1731 costs submissions in reply
(1) has in substance repeated its submissions in the 12 November 2025 OSP1731 costs submissions;
(2) additionally submits that the conduct of the parties in the proceedings, as well as any factors set out in s 60(3) of the NCAT Act are all grounds on which the Appeal Panel can find that special circumstances have arisen and exercise its discretion to make an order for costs against Ms Karpinski.
Some general observations as to the submissions of OSP1731
Whether there are special circumstances warranting an award of costs in favour of OSP1731
(1) there was no late withdrawal of the appeal by Ms Karpinski. On the contrary, she acted promptly to withdraw the appeal, namely at the call over which was held 14 days after the lodgement of her notice of appeal;
(2) it was not forced to incur legal costs, but choose to do so in circumstances of not obtaining leave for representation by an Australian legal practitioner pursuant to s 45(1)(b)(ii) of the NCAT Act.
The factors in s 60(3)(c) and (e) of the NCAT Act
(1) Ms Karpinski's appeal had no tenable basis in law or fact in the sense that she had a very weak case or none at all as her challenge to order 1 of the 29 September 2025 orders was based on evidence not adduced before the making of these orders as to the alleged reduced sale price of her lot;
(2) Ms Karpinski's appeal was not reasonably arguable for the same reasons.
(1) I do not accept that Ms Karpinski acted so unreasonably within the principles in Lai Qin at 624-625 in circumstances where she lodged her notice of appeal without legal advice, and withdraw the appeal within 14 days of its commencement after having obtained legal advice;
(2) I do not accept that the principles in ONE.TEL at [6] are applicable because Ms Karpinski did not prosecute the appeal for some time before effectively surrendering to OSP1731 in withdrawing to the appeal.
If there are special circumstances warranting an award of costs in favour of OSP1731, whether the discretion should be exercised to award costs
(1) OSP1731 failed to make, and failed to provide any explanation for its failure to make, an application for leave to be legally represented. It was unfair to Ms Karpinski that she should exposed to an order for costs for legal services provided when it had not obtained an order that it have leave to be legally represented and had not given notice to her of its proposed application that it be legally represented. I accept that the making of an order for leave for a party to be represented by an Australian legal practitioner pursuant to s 45(1)(b)(ii) of the NCAT Act is not a precondition to the making of a costs order in favour of that party as held in N & T Buildings Pty Ltd v Ball [2018] NSWCATAP 83 at [11]- [12]. However, the making of such an order may be taken into account in the exercise of the discretion to award costs. In these circumstances, of relevance are the observations of the Fair Work Commission Full Bench (Hatcher VP, Dean DP, Commissioner Wilson) in Fitzgerald v Woolworths Ltd [2017] FWCFB 2797; (2017) 270 IR 128 at [57] in relation to the failure of the respondent to have obtained leave for legal representation under s 596 of the Fair Work Act 2009 (Cth) (which is analogous to s 45 of the NCAT Act):
"[57] ... Mr Fitzgerald's main complaint about Woolworths' representation was that ... he could not reasonably have anticipated that he would subsequently face a costs application that included the fees charged for Mr Bennett's attendance at the hearing. That point has a degree of substance, notwithstanding that Woolworths had in earlier correspondence placed Mr Fitzgerald on notice that he might face a costs application should he proceed with his application. ..."
(2) there is no evidence that any person on behalf of OSP1731 gave notice to Ms Karpinski that it would seek an order for costs against her prior to the service of the 28 October 2025 OSP1731 submissions. It was unfair to her that she should exposed to an order for costs for legal services provided including "submissions on notice of appeal" in the 28 October 2025 OSP1731 submissions before it had given notice to her of its proposed application that she pay its costs of the appeal in the event that she did not withdraw the appeal within a reasonable time. The notice of one day given by the 28 October 2025 OSP1731 submissions was not a reasonable time;
(4) there is no evidence that the quantum of costs in dispute is significant. OSP1731 without any explanation failed to follow the NCAT Guideline on Internal Appeals at [79].
If the discretion should be exercised to award costs in favour of OSP1731, what costs order should be made
(1) The costs application of the respondent is dismissed.
(2) Each of the appellant and the respondent is to pay their costs of the appeal.
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.
Karpinski
The Owners - Strata Plan No 1731 [2026] NSWCATAP 12;
(2017) 270 IR 128
(2000) 101 FCR 548
(1997) 186 CLR 622
(2000) 203 CLR 194
(1990) 190 CLR 534
(1998) 193 CLR 72
(1998) 152 ALR 83
(2018) 97 NSWLR 681