Lapraed v Gathercole

Dispensing with a hearing

1. Neither party opposed me considering the respondent's application for costs on the papers and without a hearing. I am satisfied that the issues can be adequately determined in the absence of the parties by considering their written submissions, and I order that a hearing is dispensed with: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 50(2).

The relevant costs rule and principles

1. The respondent correctly identified s 60 of the NCAT Act as the relevant costs rule. Section 60 provides: 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. (5) In this section-- "costs" includes-- (a) the costs of, or incidental to, proceedings in the Tribunal, and (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.
2. As the Appeal Panel stated recently in Roberts v The Owners - Strata Plan No 4393 [2023] NSWCATAP 119 at [68]: The general position in the Tribunal regarding the application of s 60 was summarised by the Appeal Panel in Monument Building Group Pty Ltd v Kapila (No 2) [2021] NSWCATAP 339. The Appeal Panel said: 8. Special circumstances are circumstances that are out of the ordinary, but need not be those which are exceptional or extraordinary: Edwards v Commissioner for Fair Trading, Department of Customer Service (Costs) [2019] NSWCATAP 249 at [9]; Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]; Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222 at [8]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32]. 9. 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. The exercise of the discretion requires the Appeal Panel "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 87at [9].

Respondent's submissions

1. In summary, the respondent submits that the appellant should be ordered to pay its costs of the appeal because there are special circumstances warranting an award of costs under s 60 of the NCAT Act namely:

The appeal was misconceived and untenable (s 60(e)),

1. The notice of appeal identified the grounds of appeal as being: 1. The information provided by the (then) applicant is false and untrue; 2. New evidence to support the above is now available; 3. The respondent (now appellant) was denied his rightful legal rights to attend court at a date postponed.
2. The respondent submitted that the appeal was always hopeless because the appeal was filed out of time and the appellant required leave to appeal. The appellant failed to produce any evidence or advance any submission as to why leave would have been granted. In so far the grounds were a challenge to the correctness of the Tribunal Member's findings of fact the appeal was inevitably bound to fail because the findings of fact made at first instance were made in respect of uncontested evidence. No evidence was adduced to contest the evidence relied upon before the Tribunal at first instance.
3. The appellant did not identify any new evidence which was supposedly available for the appeal.
4. The appellant was not entitled to an adjournment of the first hearing and no further submissions were advanced by the appellant to support this ground.

The appellant conducted the appeal in a way that unnecessarily disadvantaged the respondent and increased its costs (ss 60 (a) and (g)).

1. The respondent contends that the conduct of the appellant was unreasonable causing the respondent to incur unnecessary costs noting that prior to lodging his appeal the appellant had advised the Tribunal in separate proceedings that he accepted the order in the first instance proceedings to provide vacant possession by 11 April 2023.
2. The appellant failed to complete the application form for a stay causing the respondent to unnecessarily incur costs of preparing for the hearing of a stay application in circumstances where no basis for the stay application had been articulated.
3. The appellant did not file any relevant evidence that would have supported his application for a stay or identified any real prospects of success in respect of his grounds of appeal.
4. The appellant did not comply with the Tribunal's directions to file and serve submissions on the stay application.
5. The appellant failed to appear at the hearing causing the respondent to incur unnecessary costs for appearing.
6. The appellant lodged a reinstatement application of the appeal in circumstances where his explanation for failing to appear at the hearing was manifestly inadequate and was not capable of being accepted by the Tribunal as warranting reinstatement of the proceedings.
7. The appellant failed to comply with the Tribunal's directions for the filing and serving of evidence in respect of the reinstatement application.
8. The appellant pressed an application for reinstatement even after the respondent had already taken possession of the premises, rendering the proceedings futile.
9. The conduct was not only unreasonable in a general sense but prolonged the proceedings. In both respects, the respondent was forced to unnecessarily incur costs.

Consideration

1. There is substance in the respondent's submissions which I accept.
2. I am of the view that the grounds of appeal as set out by the appellant were unlikely to be established and even if the appellant had attended the hearing, it would have been likely to have been found that the appeal did not have substantial merit and that there would not have been a grant to of leave to appeal. The grounds of appeal were not supported by evidence or submissions at any stage.
3. It is essential to set out the timetable of the proceedings to demonstrate that the appellant unnecessarily prolonged the proceedings, and caused a disadvantage to the respondent (see s60(3)(b) and (c)). An order was made by the Consumer and Commercial Division of the Tribunal on 9 March 2023 terminating the residential tenancy agreement. The appellant did not appear at that hearing to defend the proceedings. The appellant failed to vacate the premises on the date for possession, 11 April 2023. The Sheriff was engaged to attend on 28 April 2023 but could not take possession of the premises because the appeal had been filed, setting out untenable grounds of appeal. The appellant filed a stay application. Submissions and evidence were filed by the respondent, opposing the stay application. The appeal was listed on 3 May 2023 for a hearing of the stay application, and on 3 May 2023 the appellant again failed to appear. The stay application and the appeal were dismissed. On 4 May 2023 the appellant filed a reinstatement application and the Appeal Panel made a direction for the parties to exchange of submissions in respect of the reinstatement application. On 8 May 2023 the Sherriff executed the orders and possession was given to the landlord. The reinstatement application was listed on 17 May 2023, again the appellant failed to appear and the reinstatement application was dismissed.
4. By reason of his repeated non-appearance the appeal was dismissed and the appellant had no success in these appeal proceedings. It is sufficient to refer to the grounds of appeal to demonstrate that the appellant had failed to articulate sufficient grounds and that the filing of the appeal was designed merely to stave of inevitable eviction from the premises.
5. In my view, the appeal was entirely unmeritorious, so much so that it can be characterised as untenable and misconceived. Further, I consider that by pursuing numerous applications that had no merit and by repeatedly failing to appear, the respondent was put to unnecessary costs in defending the appeal proceedings.
6. Taking into account the multiple failures of the appellant to appear to prosecute his appeal, causing the respondent to incur costs at every juncture, in my view this is a case where there should be a departure from the usual order that each party pay its own costs. The respondent should be entitled to an order for costs in its favour.
7. Accordingly, I will make an order that the appellant pay the respondent's costs of the appeal proceedings, such costs to be as agreed or assessed on an ordinary basis.
8. In summary, I am satisfied that the weakness of the grounds of appeal and the conduct of the appeal proceedings constitute special circumstances. In the absence of any submissions from the appellant challenging the respondent's submissions, I am satisfied that special circumstances warrant an award of costs.
9. It follows that the appellant must pay the respondent's costs of the appeal.

Order

1. The Appeal Panel orders: 1. A hearing on costs is dispensed with in accordance with section 50(2) of the Civil and Administrative Tribunal Act 2013. 2. The appellant is to pay the respondent's costs of the appeal as agreed or 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.

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: 07 November 2023