Kazzi v Bechara [2021] NSWCATAP 244 | Case summary

NCAT Appeal Panel|2021-08-16

REASONS FOR DECISION

In Kazzi v Bechara [2021] NSWCATAP 166 we dismissed the appellants' appeal and made directions for the filing and service of submissions and evidence on costs should any party seek their costs of the appeal.
The respondent seeks such an order, and has filed and served submissions and evidence as to costs, albeit approximately 19 days out of time. There has been no submissions or evidence filed or served by the appellants.
The respondent consents to this application being determined on the papers. The parties have had the opportunity to file and serve evidence and submissions in support of their respective positions. We are satisfied the application for costs can be adequately dealt with on the papers and without an oral hearing. Accordingly, we will make an order dispensing with the hearing.
The background to the proceedings is set out in our principal decision and need not be repeated. These reasons assume familiarity with the reasons we gave in our principal decision.
The respondent submitted, correctly, that s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act") applies to this application for costs.

Principles

Several relevant principles applying to costs applications governed by s 60 of the NCAT Act were set out in The Owners - Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273. In that case the Appeal Panel said (footnote omitted): "5. Section 60 of the NCAT Act relevantly says: 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. 6. The general rule set out in s 60(1) was: "… designed to promote access to justice generally and to minimise the overall level of costs in tribunal proceedings as far as is practicable: Choi v University of Technology Sydney [2020] NSWCATAP 18 at [41]. 7. In Feng v OzWood (Australia) Pty Ltd [2020] NSWCATAP 42 the Appeal Panel said, at [8], that the discretion to award costs had to be exercised judicially: "...having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. (See eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [23]-[31]; Nguyen & Anor v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen & Anor (no 2) [2016] NSWCATAP 168 at [16].)" 8. Section 60(2) says that the Appeal Panel may award costs to a party "only if" satisfied there are special circumstances warranting an award of costs. 9. Section 60(3) sets out a non-exclusionary list of factors to which an Appeal Panel may have regard in determining whether special circumstances warranting an award of costs exist. 10. "Special circumstances" are circumstances that are out of the ordinary, but need not be those which are exceptional or extraordinary: Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [60] (Santow J); Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley[2015] NSWCATAP 21 at [32]; Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222 at [8]; Edwards v Commissioner for Fair Trading, Department of Customer Service (Costs) [2019] NSWCATAP 249 at [9]; Youssef v NSW Legal Services Commissioner (Costs) [2020] NSWCATOD 115 at [107]. 11. However, it does not follow that a costs order should be made simply because one or more of the factors in s 60(3) are made out. 12. Even if satisfied that there are special circumstances, the Appeal Panel must further be satisfied that they are circumstances "warranting an award of costs" - Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103 at [21]; Youssef at [108]. 13. The exercise of the discretion requires the Tribunal "to weigh whether those circumstances are sufficient to amount to 'special' circumstances that justify departing from the general rule that each party bear their own costs": BPU v New South Wales Trustee and Guardian (Costs) [2016] NSWCATAP 87 at [9]; Obieta v Australian College of Professionals Pty Ltd (2014) NSWCATAP 38 at [81]; Khalafv Commissioner of Police [2019] NSWCATOD 178 at [29]; Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 at [35]. 14. He who asserts must prove, and so the party seeking the costs order bears the onus of proving that special circumstances exist - Styles v Wollondilly Shire Council [2017] NSWCATAP 108 at [5] under the heading "Costs". 15. Whether special circumstances exist is a question of fact and each case must be assessed according to its circumstances: Wynne Avenue Property Ltd v MJHQ Pty Ltd (No 2) [2019] NSWCATAP 68 at [57]; The Owners - Strata Plan 20211 v Rosenthal [2019J NSWCATAP 49 at [15]."

Submissions

The respondent submitted that the special circumstances set out in sub-s 60(3)(b), (c) and (e) existed and warranted an order for costs, and submitted that we should make an indemnity costs order in his favour or, in the alternative, an order for costs on the ordinary basis.
In summary, the respondent submitted that during the appeal the appellants offered no tenable basis in fact or law to support their case, and their grounds were misconceived and lacking in substance. They pointed to the appellants' lack of submissions on various points and grounds of appeal, the abandonment of at least one ground of appeal during the hearing of the appeal, and the lack of any identification by the appellants of any authority or statutory provision which supported the grounds which were ultimately argued.
As the respondent put it: "… the Appellant (sic) lacked and provided minimal submissions or arguments in relation to their appeal, demonstrating that the Appellant (sic) had no tenable basis in fact or law and thus, it should be found that special circumstances exist."
The respondent also submitted that the bringing of the appeal was an attempt by the appellants to prolong the proceedings and were frivolous or vexatious in nature.
The respondent also sought to rely on evidence to the effect that the appellants sought to barricade the property on or about 21 May 2021 (being between the hearing of the appeal and delivery of our decision) in an attempt, so it was submitted, to frustrate the orders by the Tribunal at first instance.
Whilst that allegation would be relevant to an application in relation to the enforcement of the Tribunal's orders, it has no relevance that we can see to an application for costs.

Decision

Regarding the delay in making this costs application, we note the application to extend time is unopposed and accept the reasons for the delay set out in the Respondent's written submissions, which are uncontested. In the circumstances, we exercise the discretion provided in Rule 5 of the Civil and Administrative Tribunal Rules to dispense with strict compliance with the timetable set in our reasons and extend the time up to the date of filing the costs application (5 July 2021).
It is true that the appellants' submissions were somewhat minimalistic, with no submissions provided or developed in relation to Grounds 1, 3 and 4.
Submissions were made by the appellants in relation to Ground 2, although they fell short of engaging with the legal arguments which arose in relation to that ground, the fault for which lies at the feet of the appellants' solicitor rather than the appellants themselves.
Whilst a deficiency in submissions on a ground of appeal may be reflective of the fact that that ground does not have a tenable basis in fact or law, or is misconceived or lacking in substance, it may also be reflective of the fact that the advocate for the party has not put his or her client's argument as well as perhaps might have been expected. In that latter circumstance, the deficiency in submissions does not necessarily mean that a ground does not have a tenable basis in fact or law, or is misconceived or lacking in substance. One must examine the ground more closely to determine whether it has one or more of those features.
In our opinion the basal argument put in relation to Ground 2 was not misconceived or lacking in substance, nor could it be described as having no tenable basis in fact or law. It is true that Ground 2 was dismissed for the reasons we gave in our principal decision, but the ground was arguable (as opposed to having no tenable basis in fact or law) and there were facts which supported the argument put (such as the letter from Bayside Council dated 24 March 2021).
Put in more colloquial terms, whilst the appellants' argument on Ground 2 could fairly have been described as weak, it was not hopeless i.e. having no tenable basis in fact or law, or misconceived or lacking in substance.
We do not accept the respondent's submission that the bringing of the appeal was an attempt by the appellants to prolong the proceedings and were frivolous or vexatious in nature. From the material provided to us, including the material relation to the provisional AVO, it seems rather clear that the appellants held a genuine belief that the respondent's continued occupation of the granny flat was not in their family's best interests, and the bringing of the appeal was a genuine attempt to achieve a different result to that found by the Tribunal. Of course, whether their genuine belief was soundly or properly based is a different question, and not one which we are required to decide.
For those reasons we do not find that any of the special circumstances relied on by the respondent existed in this case.
As that finding is sufficient to dispose of the application we need not decide whether, had we found that the identified special circumstances did exist, we would have exercised our discretion in favour of the application.
We note that the respondent made no submissions in that regard, contenting himself with the position that if a special circumstance existed then an order for costs should follow. That position is contrary to authority (see The Owners - Strata Plan No 63731 at [11]-[13] quoted above).
However, suffice to say that had we been called upon to decide whether to exercise our discretion in those circumstances, we would not have found that the special circumstances identified warranted an award of costs. They were not so exceptional or out of the ordinary as to warrant an award of costs in this case.

Orders

We make the following orders: 1. Time to bring the application for costs is extended up to and including 5 July 2021. 2. A hearing on costs is dispensed with. 3. The respondent's application for costs of the appeal is dismissed.

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: 16 August 2021

Kazzi v Bechara

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Judgment (6 paragraphs)

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