When we published our decision upholding the appeal, we made directions for the parties to make submissions with respect to costs of the appeal. The parties were given notice that they should include in their submissions their attitude to whether our decision on costs may be determined on the papers and whether a hearing on costs may be dispensed with.
This decision concerns the application by the Appellants for an order that their costs of the appeal be paid by the Respondent. The application follows our decision referred to above in which we made declarations concerning the status of the Respondent's occupation of the premises which was the subject of dispute between the parties. The dispute concerned contentions as to the Respondent's status under the Residential Tenancies Act 2010 (NSW) (the RT Act).
The position with respect to costs of proceedings in the Tribunal is regulated by s 60 of the Civil & Administrative Tribunal Act 2013 (NSW) (the NCAT Act). Section 60 is in the following terms:
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.
Generally speaking, each party to proceedings in the Tribunal is to pay the party's own costs. However, the Tribunal has the discretion to award costs "only if it is satisfied that there are special circumstances warranting an award of costs". Section 60 sets out in s 60(3) matters to which the Tribunal may have regard in determining whether there are special circumstances.
The Civil & Administrative Tribunal Rules 2014 (the Rules) modifies the provisions contained in s 60. Rule 38 provides that the Tribunal may, despite s 60, award costs with respect to proceedings allocated to the Consumer & Commercial Division of the Tribunal even in the absence of special circumstances warranting such an award, if the amount claimed or in dispute in the proceedings is more than $30,000. Rule 38A provides that with respect to costs incurred in an appeal the provisions of Rule 38, if applicable at first instance, are also applicable with respect to costs of the appeal.
With the above background, we will now turn to the parties' submissions.
[2]
Appellants' Submissions
The Appellants draw attention to Rules 38 and 38A and, in a footnote, state that the $30,000 limit is exceeded by reason of the fact that the Respondent has occupied the property without paying the market rent. This submission is not developed and, in any event, it is our view that the proceedings did not concern a claim for an amount in excess of $30,000 or a dispute about such an amount. Rather, the proceedings at first instance concerned whether the Respondent had acquired a position as occupant of the subject premises protected by the provisions of the RT Act.
The Appellants' submissions concentrate on the point that the Appeal Panel should determine that there are special circumstances. The Appellants submit that:
1. Section 60(3)(a) applies because the Respondent conducted the proceedings to the disadvantage of the Appellants. The Appellants' point to the finding we made that the Respondent lacked candour and transparency in conduct concerning disclosure of the alleged residential tenancy agreement. The Appellants also point to alleged threats made by the Respondent to the Appellants or some of them.
2. The Appellants rely on s 60(3)(c) and submit that the Appellants' case has been strong and the Respondent's case weak including in ways known to the Respondent because he knew that the Respondent's mother has dementia.
3. The Appellants also rely upon s 60(3)(d) and submit that there was nothing complex in the proceeding such that the Respondent could not have known of his poor prospects.
4. The Appellants rely upon s 60(3)(e) on the basis that the Respondent's claims in the proceedings lacked substance.
5. The Respondent's further rely upon s 60(3)(f) and submit that the volume of material the Respondent filed and the lack of relevance of most of it fails to adhere to s 36(3) of the NCAT Act.
6. The Appellants further rely upon s 60(3)(g). The Appellants submit that the Respondent's conduct has kept the Respondent's mother out of the income that the property could have derived and that the Respondent interfered with her care arrangements. Other conduct of the Respondent is mentioned as well as the Respondent's capacity to pay a costs order.
The Appellants submit that special circumstances are not circumstances that are extraordinary or exceptional but merely those that are out of the ordinary. We divert to make the comment that there are many Tribunal decisions supporting this brief description of what constitutes special circumstances.
The Appellants further submit that the costs order should be made on the indemnity basis. In support, the Appellants rely upon an offer made in a letter dated 21 January 2022 from the Appellants' representatives to the Respondent. The Appellants also rely upon offers made in correspondence dated 13 September 2021 and 11 December 2021. The claim for indemnity costs also relies upon contentions that the Respondent's case lacked prospects of success and that the Respondent's conduct was unreasonable.
A copy of the letter of the 21 January 2022 is attached to the submissions and, relevantly, sets out arguments as to why the Respondent will be unsuccessful in the appeal. The letter also invites the Respondent to vacate the premises by 18 February 2022. In the alternative, there is an invitation for the Respondent to pay a weekly rental reflective of the market rent. The earlier letters predate the commencement of the appeal and are, in our view, not relevant to a consideration of whether costs of the appeal should be the subject of an order in favour of the Appellants.
[3]
Respondent's Submissions
The Respondent's submissions are, with respect, not relevant to the matters that we must consider. They involve largely assertions as to the broader dispute between the parties as to who should have care for their mother, and they contain a critique of the conduct of the Appellants.
In any event, because we are of the opinion that there should be no order for costs of the appeal, it is not necessary to set out the Respondent's submissions.
[4]
Consideration
The parties have been given an appropriate opportunity to make submissions as to whether we may adequately determine the question of costs of the appeal on the papers and make an order dispensing with a hearing on costs. We are so satisfied and make an order dispensing with a hearing.
Although the Appellants were successful in having the appeal upheld and obtaining the declarations that they sought under the RT Act it does not follow that they are entitled to an order for costs of the appeal. It is necessary to consider whether the appeal involved special circumstances warranting an award of costs.
It must be remembered that a costs order is made to partially compensate the successful party for costs incurred, not to punish the unsuccessful party.
We do not agree with the Appellants' submission that the conduct of the Respondent during the appeal was such as to disadvantage the Appellants. The reference to a lack of candour and transparency referred to conduct occurring well before the commencement of the appeal, as did the alleged threats. There is no basis for finding special circumstances under s 60(3)(a).
The Appellants' assertions in reliance upon s 60(3)(c) are based upon the notion that the Appellants' case has been, at all relevant times, strong and the Respondent's case was weak. That may be so but of itself that does not give rise to a finding of special circumstances. In any event, this case involved a consideration of competing evidence and until the appropriate findings of fact were made it was not possible to conclude that the Respondent's case was so weak, and the Appellants' case so strong, that their relative claims could be described as so disparate as to be considered out of the ordinary. There is no basis for an order under subsection (c).
Turning to s 60(3)(d), the Appellants state that the proceedings were not complex and that the Respondent, in effect, should have foreshadowed his poor prospects. We do not agree. The proceedings did, in our opinion, contain some complexity by reason of the factual background (which included consideration of the evidence concerning the capacity of the parties' mother) and that it was not obvious that the Respondent's prospects were poor.
For the same reason as above, reliance upon s 60(3)(e) is not available to the Appellants. It cannot be said that the Respondent's claims lacked substance despite our inability to understand at least one of the Respondent's submissions.
The Appellants also rely upon s 60(3)(f) on the basis that the Respondent's material was voluminous and most of it lacked relevance. There is some truth to that submission. But, on the other hand, some latitude needs to be given to a self-represented party who is not a lawyer. In this case we do not regard the inclusion of irrelevant material by the Respondent as sufficiently significant to warrant a finding that that fact constitutes special circumstances warranting an award of costs.
The Respondent finally relies upon s 60(3)(g), although the submissions refer to (d), it is clear that this is a typographical error. This submission invites us to make findings of fact in relation to matters that were not fully the subject of appropriate evidence before us in the appeal. Although there was reference to the market rent of the premises, there was inconclusive evidence as to whether it was intended to have the mother reoccupy the premises or whether the premises would be let out at market rent. The issue before us in the appeal was whether the Respondent was entitled to occupation by virtue of a provision of the RT Act and we decided that he was not so entitled. It is a separate matter as to whether the Appellants have a claim against him for loss of rent. Such a claim was not before us for consideration. It would be inappropriate to introduce such a claim indirectly as a reason for concluding that there are special circumstances warranting an award of costs.
In conclusion, we are of the opinion that there are no special circumstances warranting an award of costs. It follows that there is no necessity to consider the Appellants' claim for indemnity costs.
We make the following orders:
1. A hearing on costs is dispensed with.
2. The Appellants' application for an order for costs of the appeal to be paid by the Respondent 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
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Decision last updated: 09 June 2022