Kontaineroo Pty Ltd v Slaveski

NCAT Appeal Panel|2024-12-20|Before: Blake AM

Overview

This is an internal appeal from the decision of the Consumer and Commercial Division of the Tribunal made on 12 July 2024 in proceedings under the Home Building Act 1989 (NSW) (HB Act) concerning a dispute between the respondents, Drage Slaveski and Susie Slaveski (Mr and Mrs Slaveski) who are the owners of a property at Blackbutt in New South Wales (the property), and the appellants, Kontaineroo Pty Ltd (Kontaineroo), which is the builder, and Kearan McMenamin (Mr McMenamin), who is the general manager of the builder, that agreed to carry out residential building work at the property.
On 18 October 2024, I dismissed the appeal upon its withdrawal by Kontaineroo and Mr McMenamin.
Mr and Mrs Slaveski have applied for an order that Kontaineroo and Mr McMenamin pay their costs of the appeal on the indemnity basis (the Slaveski costs application).
I have decided that the Slaveski costs application should be dismissed, and that each of the Kontaineroo and Mr McMenamin and Mr and Mrs Slaveski are to pay their costs of the appeal.

The factual background

On 22 April 2022, Mr and Mrs Slaveski and Kontaineroo entered into a contract for the construction of a swimming pool at the property (the building works).
A dispute arose between the parties as to whether the building works were defective and incomplete.

The proceedings between the parties in the Tribunal

On 4 September 2023, Mr and Mrs Slaveski as the applicants commenced proceedings HB 23/40839 against Mr McMenamin as the respondent by filing a home building application claiming relief under the HB Act.
On 16 October 2023, the Tribunal made an order amending the name of the respondent to Kontaineroo.
On 8 February 2024, the Tribunal made an order joining Mr McMenamin as a respondent.
On 12 July 2024, the Tribunal constituted by Senior Member De Jersey made a decision (the 12 July 2024 decision) which comprised the following orders (the 12 July 2024 orders) and reasons for those orders (the 12 July 2024 reasons): "1. Pursuant to section 48O(1) of the Home Building Act NSW 1989 the respondents are to pay the applicants $46,443.50 by 31 July 2024. 2. The balance of the application is dismissed. 3. Any application for costs to be filed and served within 14 days of these orders. 4. Any submission in reply to be filed and served within 28 days of these orders."
On 11 October 2024, the Tribunal constituted by Senior Member De Jersey made a decision which comprised the following order (the 11 October 2024 order) and reasons for this order: "1 The respondents Kontaineroo Pty Ltd,Kearan Mcmenamin, is to pay the costs of the applicants Drage Slaveski,Susie Slaveski, as agreed or as assessed."

The history of the appeal

On 20 August 2024, Kontaineroo and Mr McMenamin as the appellants commenced proceedings 2024/00310251 against Mr and Mrs Slaveski as the respondents by filing: 1. a notice of appeal together with accompanying documents in which they appealed against order 1 of the 12 July 2024 orders and sought an order that they pay Mr and Mrs Slaveski the amount being the cost of completion of the building works. It is unnecessary to set out the grounds of appeal; 2. an application for stay of original decision pending appeal together with accompanying documents in which they sought a stay of order 1 of the 12 July 2024 orders (the stay application).
On 26 August 2024, the Tribunal constituted by Principal Member Suthers listed the appeal for a callover and hearing of the stay application on 11 September 2024 at 9.30 AM, and made procedural orders for the lodgement and service of evidence and submissions be the parties for the stay application (the 26 August 2024 orders).
On 2 September 2024, the Tribunal constituted by Principal Member Suthers at the request of the solicitors of Mr and Mrs Slaveski adjourned the callover and hearing of the stay application to 25 September 2024 at 9.30 AM.
On 23 September 2024, the solicitors of Mr and Mrs Slaveski lodged Submissions of Respondent dated 23 September 2024 (the 23 September 2024 Slaveski submissions).
On 25 September 2024, the Tribunal constituted by myself made procedural orders for the hearing of the appeal including granting leave to the parties to be legally represented, providing for the documents to be relied on by the parties including by order 4 that Kontaineroo and Mr McMenamin lodge their documents in support of the appeal by 16 October 2024, listing the appeal for hearing on 25 November 2024 at 2.15 pm, dismissing the stay application and by order 12 making no order as to the costs of the stay application (the 25 September 2024 orders).
On 2 October 2024, the solicitors of Mr and Mrs Slaveski lodged the following documents: 1. Submissions of Respondent dated 27 September 2024 (the 27 September 2024 Slaveski submissions); 2. Submissions on the question of Costs dated 27 September 2024 (the 27 September 2024 Slaveski costs submissions).
On 4 October 2024, Mr McMenamin lodged a request to withdraw the appeal.
On 18 October 2024, the Tribunal constituted by myself dismissed the appeal and made procedural orders for the determination of the foreshadowed costs application of Mr and Mrs Slaveski providing by order 3 for the lodgement of the costs application, by orders 3, 4 and 5 for the lodgement of evidence and submissions by the parties, and by orders 4 and 5 requiring the question of whether a hearing may be dispensed with to be addressed (the 18 October 2024 orders).
On 21 October 2024, the solicitors of Mr and Mrs Slaveski lodged Submissions of Respondents dated 17 October 2024 which included the Slaveski costs application (the 17 October 2024 Slaveski costs submissions).
No documents have been lodged by the parties in response to the 18 October 2024 orders.

The issues for determination

Mr and Mrs Slaveski did not lodge a costs application in response to order 3 of the 18 October 2024 orders. However, I have treated the Slaveski costs application as a costs application having been made in response to this order.
In the 27 September 2024 Slaveski costs submissions Mr and Mrs Slaveski have sought an order for the costs of the appeal including the stay application. As by order 12 of the 25 September 2024 orders I have dealt with the costs of the stay application, I have excluded these costs from my consideration of the Slaveski costs application.
The following issues arise for determination: 1. issue 1: whether a hearing of the Slaveski costs application should be dispensed with; 2. issue 2: the Slaveski costs application.

Issue 1: whether a hearing of the Slaveski costs application should be dispensed with

In the 27 September 2024 Slaveski costs submissions, Mr and Mrs Slaveski do not object to a hearing of the Slaveski costs application being dispensed with.
I am satisfied that that the issues for determination in relation to the Slaveski costs application can be adequately determined in the absence of the parties by considering the written submissions of Mr and Mrs Slaveski. Accordingly, I have decided pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to make an order dispensing with a hearing in relation to the Slaveski costs application.

Introduction

In the 27 September 2024 Slaveski costs submissions, Mr and Mrs Slaveski have made submissions that they are entitled to costs under r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) or alternatively s 60 of the NCAT Act. I have treated the reference to r 38 of the NCAT Rules as a mistaken reference to r 38A.
For the purpose of r 38A of the NCAT Rules the amount claimed or in dispute is the amount in dispute on appeal, not the amount in dispute in the proceedings at first instance: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [57].
I am not satisfied that r 38A(2) of the NCAT Rules is applicable to this appeal because the amount in dispute in the appeal is more than $30,000. It is clear from the notice of appeal that Kontaineroo and Mr McMenamin accept that they are liable for the cost of completion of the building works. However, there is no evidence that has been adduced in the appeal as to this cost. It follows that the position of each party paying their own costs specified in s 60(1) of the NCAT Act is applicable to the appeal unless there are special circumstances warranting an award of costs in favour of Mr and Mrs Slaveski within s 60(2) of the NCAT Act. Thus, the determination of the Slaveski costs application involves answering the following two questions: 1. whether there are special circumstances warranting an award of costs in favour of Mr and Mrs Slaveski; 2. if so, whether the discretion should be exercised to award costs.
Before dealing with this issue, it is appropriate to set out the applicable provisions of the NCAT Act and legal principles, and summarise the 17 October 2024 Slaveski costs submissions.

The applicable provisions of the NCAT Act

Section 60 deals with costs, and relevantly provides: 60 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 - … (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, … (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, … (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. (5) In this section - 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.

"Special circumstances" in s 60(2) of the NCAT Act

"Special circumstances" in s 60(2) of the NCAT Act are circumstances that are out of the ordinary; they do not have to be extraordinary or exceptional circumstances: CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32].
In considering whether special circumstances exist for the purposes of s 60(2) of the NCAT Act: 1. each case will depend upon on its own particular facts and circumstances: Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152 at [27]; 2. 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].
As to the factor in s 60(3)(e) of the NCAT Act, in BDK v Department of Education and Communities [2015] NSWCATAP 129 (BDK) at [62]-[63], the Appeal Panel relevantly said in relation to the identical expression in s 55(1)(b) of the NCAT Act: "[62] It will be seen that this Tribunal's power is somewhat differently expressed. The Tribunal's power refers not only applies to proceedings that are "frivolous" or "vexatious", but then applies to proceedings that are "misconceived" or "lacking in substance". Section 55(1)(b) does not have a generic catch-all category of "abuse of process" to pick up conduct in relation to the issuance and pursuit of proceedings that might, arguably, fall outside the four specific categories set out there. [63] In Alchin v Rail Corporation NSW [2012] NSWADT 142 Judicial Member Wright SC (as he then was) examined the meaning of the predecessor provision to s 55(1)(b) - s 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1977. As to the meaning of "misconceived" and "lacking in substance", he said: 25 The expressions used in s 92(1)(a)(i) of the ADA, namely "misconceived" and "lacking in substance" are found not only in the ADA but also in s 73(5)(g) of the ADT Act and similar legislation in other states. With respect to a similar provision found in the Equal Opportunity Act 1984 (Vic), Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [14] said: "misconceived" and "lacking in substance" have not, so far as I am aware, been used in this context before though each expression is commonly used by lawyers, the one connoting a misunderstanding of legal principle and the other connoting an untenable proposition of law or fact. If one may discern, in these provisions, an attempt to express the powers of tribunals in non-technical language, then "misconceived" would represent a claim which did "not disclose a cause of action" …, whereas "lacking in substance" might be seen to represent a claim where the defendant could obtain summary judgment … 26 This approach of construing "misconceived" as including a misunderstanding of legal principle and "lacking in substance" as encompassing an untenable proposition of fact or law has been applied by the Tribunal in many decisions including, for example, Keene v Director-General, Dept of Justice and Attorney-General [2011] NSWADT 59 at [14], McDonald v Central Coast Community Legal Centre [2008] NSWADT 96 at [22] and Stanborough v Woolworths Ltd [2005] NSWADT 203 at [50]."

The exercise of the discretion in s 60(2) of the NCAT Act

Where special circumstances are found to exist, the Tribunal has a discretion to exercise in deciding what, if any, order should be made. Relevant to the exercise of that discretion are those facts upon which the finding of special circumstances was based. However, those findings do not constitute the whole of the relevant matters to be considered in deciding what, if any, order for costs should be made. Rather, the principles applicable to awarding costs generally must also be taken into account: Brodyn Pty Ltd v Owners Corporation Strata Plan 73019 (No 2) [2016] NSWCATAP 224 at [24].
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].
In The Owners - Strata Plan No. 47027 v Peter Clisdell Pty Ltd (No 2) [2018] NSWCATAP 46 at [44] the Appeal Panel decided it would not have exercised the discretion under s 60(2) of the NCAT for reasons which included that the respondent was not legally represented at the hearing of the appeal.

Proceedings without a hearing on the merits

In New Island Developments Pty Ltd v New Island Investments One Pty Ltd (No 2) [2024] NSWSC 454 (New Island Developments) at [18]-[20], Rees J recently explained the principles governing an application for costs in a case which has been resolved without a hearing on the merits: [18] In Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624-625, McHugh J stated: "When there has been no hearing on the merits … 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 … 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. … 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. … 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." [19] In One.Tel Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548, Burchett J also observed at [6]: "… 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." [20] One.Tel was followed in Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302, where Davies AJA (Mason P and Meagher JA agreeing) noted that a judge may award costs where the matter does not proceed to judgment "generally … 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 should suffer a detriment in costs": at [5]. See likewise Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84 at [26] to [30] (per Payne JA, Basten and Meagher JJA agreeing)."
The citation of Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622 at 624-625; [1997] HCA 6 (Lai Qin) in New Island Developments at [18] omits the following sentence immediately following the cited words in the second paragraph: "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."
In Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84 (Nichols): 1. Payne JA (with Meagher JA at [13] agreeing) at [25] set out with approval the full passage in Lai Qin at 624-625 and at [30] observed: "If both parties to a proceeding which has been settled without a hearing on the merits 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." 1. Basten JA at [8]-[9] observed: "… 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. … once it is clear that 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."
The observations in Nichols at [8]-[9], [30] have very recently been applied in the context of the question under r 42.20(1) of Uniform Procedure Rules 2005 (NSW) whether there are grounds for the Court to "order otherwise" than that the plaintiff pay the defendant's costs of the proceedings in circumstances where the Court makes an order for the dismissal of proceedings: Balout v Bella Ikea Cronulla Pty Ltd (No 2) [2024] NSWSC 1173 at [51]-[52], [58] (Rees J).
The principles in Lai Qin and One.Tel Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270 (ONE.TEL) have been applied in the Tribunal: see, for example, Knox v Bollen; Bollen v Knox [2018] NSWCATAP 106 at [45]-[48]. While withdrawal of proceedings in the Tribunal whether at first instance or on appeal, may in some circumstances, constitute sufficient "special circumstances" to justify a costs order, the mere fact that proceedings are withdrawn is not, of itself, a sufficient "special circumstance" to justify a costs order: MacDermott v Wang [2022] NSWCATCD 71 at [45(4)].

The 27 September 2024 Slaveski costs submissions

In the 27 September 2024 Slaveski costs submissions, Mr and Mrs Slaveski have relevantly made the following submissions: 1. they referred to Bruce v Knight (No 4) [2021] NSWCATAP 412 (Bruce) at [36]: "As the appellants submit, the circumstances that might give rise to an indemnity costs order include the following: where a party, properly advised, should have known they had no chance of success; where unfounded allegations of fraud or improper conduct are made, such as where they have been made knowing them to be false; the undue prolongation of proceedings by groundless contentions; where there is particular evidence of misconduct that causes loss of time to the court or other parties; the commencement of proceedings for some ulterior motive; and the unreasonable rejection of an offer of compromise: see Kanjian Holdings No 1 Pty Ltd v Kanjian (No 4) [2021) NSWSC 1390 at [58] and the authorities there referred to." 1. based on the grounds of appeal the appeal was essentially misconceived and lacking in substance; 2. the lodgement of a notice to appeal by Kontaineroo and Mr McMenamin was a vexatious attempt to unduly prolong proceedings by way of groundless contentions in the form of unfounded grounds of appeal and the real motive behind challenging the original decision was merely to evade payment for the following reasons: 1. the grounds of appeal listed in the notice of appeal do not satisfy the criteria relevant to the Appeal Panel's discretion to grant leave as they do not demonstrate a bona fide challenge to the Tribunal's findings in the 12 July 2024 reasons; 2. they have conceded that the building works have not been completed, and the work done thus far requires rectification, thus accepting the original claim. 3. the purported new evidence that they sought to adduce on appeal was available to them at the time of the first hearing and they had every opportunity to submit that evidence before the first hearing; 4. they have not, at any time, meaningfully engaged in these proceedings. Not only was the notice of appeal lodged outside of the relevant time period of 28 days from the 12 July 2024 decision as required by r 25 of the NCAT Rules, but they have not complied with any procedural orders since lodging the notice of appeal: 1. they have not cooperated with attempts at negotiation; 2. they did not lodge further evidence and submissions in support of the stay application as provided for by the 26 August 2024 orders; 3. they did not lodge any of the documents, evidence, or submission in support of the appeal as provided for by the 25 September orders; 1. their actions unduly prolonged proceedings and intentionally compelled a response to their baseless contentions so as to create frustration and deplete financial resources; 2. their withdrawal of the appeal following the stay application further demonstrates that their real motive was to delay and circumvent enforcement of their obligation to pay the 11 October 2024 order; 3. their withdrawal of the appeal amounts to capitulation; 1. all these circumstances constitute special circumstances warranting a costs order.

Whether there are special circumstances warranting an award of costs in favour of Mr and Mrs Slaveski

Notwithstanding the lack of any specific reference in the 27 September 2024 Slaveski costs submissions, I understand that Mr and Mrs Slaveski are relying on the matters in s 60(3)(b), (e) and (g) of the NCAT Act as special circumstances warranting an award of costs in their favour.
I am not satisfied that there are special circumstances warranting an award of costs in respect of the appeal in favour of Mr and Mrs Slaveski within s 60(2) of the NCAT Act for the following reasons: 1. Mr and Mrs Slaveski have not established that Kontaineroo and Mr McMenamin have been responsible for prolonging unreasonably the time taken to complete the proceedings within s 60(3)(b) of the NCAT Act. Six weeks and three days elapsed between the lodgement of the notice of appeal and the request for its withdrawal. The time of for compliance by them with order 4 of the 25 September 2024 orders had not passed by 4 October 2024. There was no evidence of any failure by Kontaineroo and Mr McMenamin to cooperate in attempts at negotiations; 2. having regard to the principles in BDK at [62]-[63], Mr and Mrs Slaveski have not established that the appeal was misconceived or lacking in substance within s 60(3)(e) of the NCAT Act. There was no analysis as to how each ground of appeal in the notice of appeal either involved a misunderstanding of legal principle or an untenable proposition of law or fact. All they have done is dispute that Kontaineroo and Mr McMenamin may have suffered a substantial miscarriage of justice on the basis of new evidence within cl 12(1)(c) of Sch 4 of the NCAT Act; 3. Mr and Mrs Slaveski have not established any other relevant matter within s 60(3)(g) of the NCAT Act. While I accept that the notice of appeal was lodged 8 days after the period of 28 days specified in r 25(4)(c) of the NCAT Rules, I do not accept that I should draw an inference from the actions of Kontaineroo and Mr McMenamin that they had an ulterior motive within the principles in Bruce at [36] in commencing and maintaining the appeal until 4 October 2024 of avoiding payment of order 1 of the 12 July 2024 orders.
It follows that the Slaveski costs application should be dismissed, and an order should be made that each of the Kontaineroo and Mr McMenamin and Mr and Mrs Slaveski are to pay their costs of the appeal to give effect to the position in s 60(1) of the NCAT Act.

If so, whether the discretion should be exercised to award costs

As I have not been satisfied of the condition in s 60(2) of the NCAT Act that there are special circumstances warranting an award of costs in respect of the appeal in favour of Mr and Mrs Slaveski, this question does not arise for determination. I would have decided not to exercise the discretion to award costs in respect of the appeal in favour of Mr and Mrs Slaveski for the following reasons: 1. having regard to the principles in Lai Qin at 624-625 and Nichols at [30], I am not satisfied that Kontaineroo and Mr McMenamin either acted unreasonably in commencing and maintaining the appeal until 4 October 2024, or even though they acted reasonably in so doing they were almost certain to have failed if the appeal had been determined on the merits; 2. having regard to the principles in ONE.TEL at [6], I am not satisfied that Kontaineroo and Mr McMenamin effectively surrendered to Mr and Mrs Slaveski in withdrawing to the appeal; 3. I would not have awarded costs for the 23 September 2024 Slaveski submissions as Mr and Mrs Slaveski failed to make, and failed to provide any explanation for their failure to make, an application that they be legally represented prior to 25 September 2024. There is no evidence that any person on their behalf gave notice to Kontaineroo and Mr McMenamin that such an application would be made at the callover. It was unfair to Kontaineroo and Mr McMenamin that they are exposed to an order for costs for legal services provided on and prior to 25 September 2024 when Mr and Mrs Slaveski had not obtained an order that they be legally represented and had not given notice to them of their proposed application that they 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. …" 1. I would not have awarded costs for the 27 September 2024 Slaveski submissions and the 27 September 2024 Slaveski costs submissions as they were not prepared in relation to any order made by the Tribunal; 2. I would not have made a costs order in favour of Mr and Mrs Slaveski as Kontaineroo and Mr McMenamin were self represented.

Orders

I make the following orders: 1. A hearing of the costs application of the respondents is dispensed with. 2. The costs application of the respondents is dismissed. 3. Each of the appellants and the respondents are 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. 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: 20 December 2024

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