In Lewis v Matuck [2021] NSWCATAP 214 we upheld the appellant's appeal in part, set aside the Tribunal's orders and ordered the appellant to pay the respondent $125 rather than the $1,500 ordered to be paid by the Tribunal.
These reasons concern the appellant's application for costs of the appeal, and an order that the respondent repay the appellant for monies paid by her to him pursuant to a garnishee order issued before the appeal was heard.
[2]
Costs
We are satisfied the application for costs can be adequately dealt with on the papers and without a hearing. The parties were provided the opportunity to file and serve evidence and submissions in support of their respective positions. Accordingly, we will make an order dispensing with the hearing pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act").
The amount claimed or in dispute on the appeal was in the order of $15,000 (see the appellant's Notice of Appeal and her written submissions). As this is less than $30,000, rules 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) do not apply. Therefore, what does apply is s 60 of the NCAT Act.
Several relevant principles applying to costs applications governed by s 60 of the NCAT Act were set out in The Owners - Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 (footnotes omitted) as follows:
"5. Section 60 of the NCAT Act relevantly says:
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.
6. The general rule set out in s 60(1) was:
"… designed to promote access to justice generally and to minimise the overall level of costs in tribunal proceedings as far as is practicable: Choi v University of Technology Sydney [2020] NSWCATAP 18 at [41].
7. In Feng v OzWood (Australia) Pty Ltd [2020] NSWCATAP 42 the Appeal Panel said, at [8], that the discretion to award costs had to be exercised judicially:
"...having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. (See eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [23]-[31]; Nguyen & Anor v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen & Anor (no 2) [2016] NSWCATAP 168 at [16].)"
8. Section 60(2) says that the Appeal Panel may award costs to a party "only if" satisfied there are special circumstances warranting an award of costs.
9. Section 60(3) sets out a non-exclusionary list of factors to which an Appeal Panel may have regard in determining whether special circumstances warranting an award of costs exist.
10. "Special circumstances" are circumstances that are out of the ordinary, but need not be those which are exceptional or extraordinary: Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [60] (Santow J); Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32]; Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222 at [8]; Edwards v Commissioner for Fair Trading, Department of Customer Service (Costs) [2019] NSWCATAP 249 at [9]; Youssef v NSW Legal Services Commissioner (Costs) [2020] NSWCATOD 115 at [107].
11. However, it does not follow that a costs order should be made simply because one or more of the factors in s 60(3) are made out.
12. Even 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 at [21]; Youssef at [108].
13. The exercise of the discretion requires the Tribunal "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 87 at [9]; Obieta v Australian College of Professionals Pty Ltd (2014) NSWCATAP 38 at [81]; Khalafv Commissioner of Police [2019] NSWCATOD 178 at [29]; Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 at [35].
14. He who asserts must prove, and so the party seeking the costs order bears the onus of proving that special circumstances exist - Styles v Wollondilly Shire Council [2017] NSWCATAP 108 at [5] under the heading "Costs".
15. Whether special circumstances exist is a question of fact and each case must be assessed according to its circumstances: Wynne Avenue Property Ltd v MJHQ Pty Ltd (No 2) [2019] NSWCATAP 68 at [57]; The Owners - Strata Plan 20211 v Rosenthal [2019J NSWCATAP 49 at [15]."
The appellant does not identify any special circumstances which would warrant an award of costs, and none are apparent to us. In those circumstances s 60(1) applies and each party should bear her and his own costs of the appeal.
Therefore, the appellant's application for costs of the appeal is dismissed.
[3]
Repayment
On 28 April 2021, the Tribunal ordered the appellant to pay the respondent $1,500.
On 12 May 2021, the appellant filed her Notice of Appeal.
Also on 12 May 2021, the Local Court issued a Garnishee Order for the sum of $1,597 against the appellant. The additional $97 to that ordered by the Tribunal was in relation to Local Court fees.
At no time did the appellant seek a stay of execution from the Tribunal on the Tribunal's order of 28 April 2021. She did tick the box in her Notice of Appeal indicating that she would be applying for a stay, but did not follow the form's advice to complete the application for a stay and lodge that form with her Notice of Appeal.
On 17 May 2021 the appellant obtained a stay of enforcement from the Local Court of NSW.
Unfortunately, and for reasons unknown, that stay did not prevent the garnishment of the appellant's bank account to the tune of $1,037.38.
As the order made by us on 2 July 2021 was that the appellant only pay the respondent $125, the respondent has been overpaid and should repay such monies to which he is not entitled.
As the registration of the Tribunal's order with the Local Court was regularly obtained, and as the appellant did not seek a stay of the Tribunal's order from the Tribunal when she filed her Notice of Appeal, it is appropriate that the respondent be reimbursed for the $97 incurred by him for Local Court fees.
Therefore, we will order the respondent pay the appellant $815.38, being the sum paid to him ($1,037.38) less the sum owed by him pursuant to our order ($125) less the Local Court fees ($97).
The appellant submitted we should order the appellant pay her the whole sum of the garnishee order ($1,597) because she said neither the Local Court nor the relevant bank could guarantee that no more monies would be garnisheed from her bank account per the Local Court order of 12 May.
Of course, that order could not be made because she would be receiving monies to which she has no present entitlement, and this eventuality seems unlikely given no further monies have been garnisheed from the appellant's account.
However, against the possibility that further monies may be (incorrectly) garnisheed pursuant to the Local Court order of 12 May 2021, we will grant leave to the appellant to seek a further order for repayment by the respondent if that circumstance occurs.
[4]
Orders
We make the following orders:
1. A hearing on costs is dispensed with.
2. The appellant's application for costs of the appeal is dismissed.
3. The respondent is to pay the appellant $815.38.
4. The appellant has leave to apply to the Appeal Panel after seven days notice to the respondent should any further execution occur in relation to the order of the Local Court of NSW dated 12 May 2021 in Local Court proceedings 2021/131267.
[5]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
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: 13 August 2021