Leo and Fang v Conrad Homes Pty Ltd (No 2)

1. The appellant did not file any costs submissions.

Whether to dispense with a hearing in respect of costs

1. Section 50 Civil and Administrative Tribunal Act 2013 (the NCAT ACT) sets out the circumstances in which the Tribunal can dispense with a hearing and proceed to determine a matter, including a costs application, having regard to submissions filed with the Tribunal.
2. The respondent accepts that a hearing in respect of costs can be dispensed with and that the question of costs can be determined on the papers, and the appellant did not oppose the question of costs being determined on the appears without a further hearing.
3. We are satisfied that the parties have been afforded an opportunity to make submissions on whether a hearing on the question of costs should be dispensed with and whether the question of costs can be determined on the papers.
4. Having considered the submissions filed by the respondent and the issues requiring consideration, we are satisfied that the question of costs can be adequately determined in the absence of the parties by considering the written submissions and other documents or material lodged with or provided to the Appeal Panel.
5. Pursuant to Section 50(4) of the NCAT Act, we exercise our discretion to determine the question of costs on the papers and will make an order under s 50(2) dispensing with a hearing on costs.

1. Costs in the Consumer and Commercial Division of the Tribunal are to be determined in accordance with s 60 of the NCAT Act or r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules).
2. Section 60 provides a general rule that operates in the Tribunal to the effect that each party to proceedings in the Tribunal is to pay their own costs, unless there are special circumstances warranting an award of costs. Costs is defined in sub-s 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.

1. Rule 38 makes provision with respect to certain matters in the Consumer and Commercial Division. It relevantly provides:

(1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal.

(2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if -

(a) ...

(b) the amount claimed or in dispute in the proceedings is more than $30,000.

1. Similarly, s 60 applies to internal appeals, but rule 38A (2) creates an exception and relevantly provides that:

(2) Despite section 60 of the Act, the Appeal Panel for an internal appeal ... must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal.

1. Rules 38 and 38A have been interpreted in numerous cases as constituting an exception to s 60.
2. Where they apply, costs orders can be made on the ordinary basis in the absence of special circumstances justifying a costs order, as otherwise required by s 60.
3. The starting position is that costs follow the event so that a successful party is entitled to an order for costs in their favour (Thompson v Chapman [2016] NSWCATAP 6) on the ordinary basis.
4. The making of a costs of is discretionary, but where the usual course is not followed the reasons for doing so ought to be clearly explained.

1. Mindful of rules 38 and 38A of the NCAT Rules we are satisfied that the amount in dispute in the proceedings before the Tribunal was more than $30,000.00 and that the Appeal Panel therefore has a general discretion in respect of costs and that the starting position is that costs should follow the event of the appeal being dismissed.
2. The respondent was successful on the appeal.
3. The appellant has not filed submissions identifying why the usual course should not be followed and we can see no reason why costs should not follow the event of the appeal being dismissed.
4. We are therefore satisfied that the respondent, as the successful party on appeal, should receive a costs order in its favour on the ordinary basis.
5. Accordingly, the Appeal Panel makes the following orders:

(1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing on the question of costs of the appeal is dispensed with.

(2) The appellants are to pay the respondent's costs of the appeal on the ordinary basis as agreed or as assessed.

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.

28 November 2025 - Order 2 and paragraph 22(2) corrected.