In our decision on this internal appeal delivered 19 October 2020 which concerned an application under the Dividing Fences Act 1991 (NSW), we allowed the appeal for errors of law, having granted an extension of time for filing the original and amended notices of appeal. We remitted the proceedings to the Tribunal for re-hearing in conjunction with any further proceedings properly brought by the appellant (KDPL).
At [75] of our substantive decision we said this about costs:
[75] As the matter does not come within rules 38 and 38A of the Rules, CATA s 60 will require special circumstances to be established for a party to be awarded any costs in respect of the appeal. We make provision in the orders if parties wish to agitate questions of costs after the substantive decision on the appeal, as both parties indicated they wished to do.
Both parties applied for a costs order. In accordance with the directions we made the parties filed written submissions and further material in chief and in reply.
[2]
Appellant's costs submissions
KDPL relied upon the following factors in s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (CATA) as justifying special circumstances:
1. Nature and complexity of the proceedings (s 60(3)(d));
2. KDPL's strong case and the weak case of the respondent (CPL) (s 60(3)(c)), and
3. Any other matter the Tribunal thinks relevant (s 60(3)(g)).
As to complexity, KDPL said that the deficiencies in its appeal were because the appeal was not prepared initially by a lawyer, which meant that the intricacy of the errors of law were not initially identified..
As to comparative strengths, KDPL relied upon the recognition, referred to by us at [61] of the substantive reasons, of the strength of the grounds of appeal. Although this was couched as CPL's "lack of reasoning and findings on fundamental matters", the focus was the errors in the Tribunal decision, as the merits of the parties' substantive contentions remains to be determined on re-hearing. We have taken the submission implicitly to be that CPL should not have continued to contest the appeal once the errors of law were properly raised because of the strength of the errors of law that should have been recognised.
On other matters, KDPL complained about CPL being "unnecessarily unco-operative on interim matters" in opposing an extension of time and in relation to ithe financial impact of the restricted use of KDPL's land arising from the Tribunal orders at first instance. As we noted at [12] of our substantive reasons, KDPL argued at first instance that there was great prejudice if the fence line was moved because of the inability of truck access to its premises. The premises were leased to a timber supplier who used long articulated vehicles. The ambiguity in the Tribunal's orders at first instance left open the relocation of the fence from its historic location to the surveyed boundary line.,
[3]
Respondent's costs submissions
CPL made the point in response to KDPL's main submission in its submissions in chief:
At the outset, the Respondent wishes to emphasise to the Tribunal that this appeal was not brought due to an error of the Respondent, a failure of the Respondent to comply with the Tribunal's orders or any inadequacy of the Respondent's case in the lower tribunal. The Appellant's case was that the Tribunal itself erred when discharging its obligations under the Dividing Fences Act 1991 (NSW). There is no proposed basis for the Appellant asserting that there are special circumstances justifying an award of costs against the Respondent.
In its submissions in reply CPL added to this by emphasising that something out of the ordinary (but not necessarily extraordinary or exceptional) must be present to justify departure from the underlying principle that each party bears its own costs: CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [23]-[31]; eMove Pty Ltd v Dickinson [2015] NSWCATAP 94 at [48]; Gaynor v Burns [2015] NSWCATAP 150 at [19]; Nguyen & Anor v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen & Anor (no 2) [2016] NSWCATAP 168 at [16].
The submissions in reply emphasised that the errors we identified were not applying established principles for finding jurisdictional facts rather than determining novel issues of legal principle or application. Any complexity was argued to be in KDPL's unsuccessful attempt to embrace its new fencing dispute within the existing appeal.
The submissions in reply called in aid the statement in Feng v OzWood Australia PL [2020] NSWCATAP 42 at [15] that the conclusion that an appeal was not reasonably arguable does not dispose of the question whether special circumstances exist or, if they do, whether they justify the exercise of discretion to award costs.
CPL sought costs in its favour on three matters:
1. Responding to KDPL's new fencing application, which related to the balance of the boundary fence not covered by CPL's fencing notice (the balance fence) and which was incompetent and beyond jurisdiction;
2. Responding to the extension of time application when there was no reason given for failure to lodge the appeal and amended appeal within time; and
3. KDPL's alleged failure to comply with directions and orders.
CPL said that it had been forced to meet the new case on the balance fence as the fallback if its jurisdictional challenge was not accepted. It also had been forced to incur substantial costs associated with responding to the extension of time application.
CPL pointed to its communications about what it said was KDPL's repeated non-compliance with the first instance Tribunal order, and the subsequent Local Court judgment to enforce that order in the amount of $1,692 ($1,498.20 plus $194 costs) to share the cost of the fence, and with the Tribunal orders at first instance by removing debris obstructing the replacement of the old fence. CPL said it incurred costs of $3,367 ex GST to move the debris. The non-compliance was in the face of refusal of a stay of the first instance orders. The Local Court judgment was offered to be withdrawn after our substantive decision.
CPL also sought its costs, approximating $1,400, of protecting safety and security of the then-unfenced land against what it described as a "baseless" stay application by KDPL. It said that KDPL did not inform the Member hearing the initial stay application ex parte that the old fence had been demolished and the new fence was already "substantially progressed". At the further interlocutory hearing when these facts came out, the stay was lifted apart from a short period to allow the exit of a truck which might otherwise have had difficulty in exiting the narrowed access route. CPL also claimed additional costs from its fencing contractor of $1,980 due to the interruption to the work on the new fence.
In its submissions in reply, CPL called in aid instances where, on the facts of the particular case, costs had been awarded for conduct analogous to the matters they identified: Florida Kitchens Centre PL v Keith (No 2) [2016] NSWCATAP 61 at [41]; Kurmond Homes PL v Spiteri [2015] NSWCATAP 48 at [21]-[22].
[4]
Conclusions on costs of the appeal
It seems to us to be inappropriate to make costs orders on the appeal. We are not convinced that the foregoing provide special circumstances that enliven and justify the exercise of discretion in favour of either party for the following reasons.
There were elements of potential unreasonableness in both parties' conduct of the appeal proceedings and related matters which we consider mean that neither party should be awarded costs
In this respect, CPL ought to have given greater consideration to its prospects of defending the original Tribunal decision once the errors of law were properly articulated. On the other hand, KDPL was tardy without explanation in that proper articulation and its amended appeal survived not because of any merit in the conduct of the appellant or the way it pursued the appeal, but because the Tribunal's decision could not be left to stand once the errors of law had been properly identified,. We agree with CPL's submission that the facts in Feng (an unmeritorious appeal) were properly distinguished from the present facts, which involved defence of an appeal that stumbled into success because of the gravity of the errors of law rather than any meritorious conduct of the appellant.
Further, as pointed out in Feng, any weakness in CPL's position on defending the original Tribunal decision was but one factor in assessing whether the basis for exercising the discretion to depart from the ordinary rule was enlivened and ought to be exercised.
KDPL ought to have made proper disclosure on its ex parte stay application, ought to have complied with the Tribunal's orders once the stay was lifted and ought not to have pressed its new case. However, once the appeal properly raised the errors of law it ought to have been clear to CPL that the costs sought by CPL would have to become ultimately a matter for the Tribunal on re-hearing of the substantive merits. In those circumstances, the extra costs borne by CPL arising from responding to these matters were balanced against the conduct of CPL pressing on when KDPL put its house in order and the errors of law in the original decision were clear.
Accordingly, we conclude that there are no special circumstances justifying an award of costs of the appeal.
For completeness, we add that we do not regard as unreasonable the resistance of CPL to KDPL's application for extension of time to submit its evidence where no medical certificate had been provided, CPL had photos of the relevant person onsite and the hearing date might be prejudiced. We also consider that any attempt by the appellant to invoke Rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) in a non-monetary context must fail by analogy with the principles in Owners SP 63341 v Malachite Holdings PL [2018] NSWCATAP 256 esp at [86]-[111].
[5]
Orders
The orders we make are:
1. The applications for costs are 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: 26 November 2020