Lirantzis v Calligas

(1) Any application for costs to be filed within 14 days of 27 November 2025;

(2) Any reply to be filed within 14 days after receipt of the application for costs.

1. The respondents have sought costs of the appeal including the stay application (primarily on an indemnity basis and in the alternative on the ordinary basis) by way of a submission dated 4 December 2025. The appellants have not filed any submission in reply.
2. In an email to the Appeals Registry dated 30 January 2026, the respondents' solicitor confirmed that a copy of the respondents' submission on costs was provided to the appellants as directed.
3. We are satisfied that a hearing on the question of costs can be dispensed with under s 50(2) of the NCAT Act and the determination be made on the papers.
4. In summary, the respondents submit:

(1) The application for costs is made under s 60 of the NCAT Act and also under Rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules);

(2) As the amount in dispute exceeds $30,000 the Tribunal may award costs as it considers appropriate and the threshold of special circumstances does not apply;

(3) Notwithstanding that it is not necessary to consider special circumstances, the respondents contend that the Appeal Panel should take into consideration the following special circumstances to make an award of indemnity costs:

(a) The appeal was futile and had no reasonable prosects as it was a procedural dismissal for non appearance under s 55(1)(c) of the NCAT Act;

(b) There has been a duplication and re-litigation of issues which has been an abuse of process warranting indemnity costs;

(c) Each filing by the appellants against the respondents has repeated the same allegations and the same unfounded accusations;

(d) The appellants have breached s 36(3) of the NCAT Act by failing to facilitate the just, quick and cheap resolution of the dispute by virtue of the appellants providing evidence which has been wholly irrelevant to the disputes.

(4) The respondents have been put to the unnecessary expense in responding to both the stay and the appeal, neither of which had reasonable prospects of success;

(5) Beyond the financial burden, the unmeritorious litigation has caused a personal toll on the respondents;

(6) There has been collateral conduct of the appellants which has materially increased the burden of the litigation such as lodgement of complaints by the appellants with the Law Society of NSW against the respondents' firm of solicitors.

1. The respondents seek indemnity costs relying on the above "special circumstances" as well as a "without prejudice letter save as to costs". That letter was served on the appellants on 15 January 2025 and the respondents submit that it sets out a reasonable offer, which was unreasonably rejected by the appellants.

Relevant legislative provisions and principles in relation to costs

1. Sections 60(1) and (2) of the NCAT Act provide that each party to proceedings in the Tribunal is to pay its own costs unless there are "special circumstances" warranting an award of costs. The circumstances for consideration of special circumstances are set out in s 60(3) of the NCAT Act.
2. However, for proceedings in the Consumer and Commercial Division of the Tribunal, s 60 is subject to rule 38 of the NCAT Rules which provides:

38 Costs in Consumer and Commercial Division of the Tribunal

(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) the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under clause 10(2) of Schedule 4 to the Act in relation to the proceedings, or

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

1. For costs in internal appeals, Rule 38A provides:

38A Costs in internal appeals

(1) This rule applies to an internal appeal lodged on or after 1 January 2016 if the provisions that applied to the determination of costs in the proceedings of the Tribunal at first instance (the first instance costs provisions) differed from those set out in section 60 of the Act because of the operation of -

(a) enabling legislation, or

(b) the Division Schedule for the Division of the Tribunal concerned, or

(c) the procedural rules.

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

1. The Appeal Panel is satisfied that the amount claimed or in dispute in both the Tribunal proceedings and in the Appeal proceedings involved a dispute over rent arrears exceeding $30,000. It follows that the Appeal Panel is satisfied that by reason of rule 38A of the NCAT Rules, the respondents do not have to demonstrate special circumstances under s 60(2) of the NCAT Act to obtain a costs order.
2. The principles regarding costs were set out in the Appeal Panel decision in Thompson v Chapman [2016] NSWCATAP 6 to the following effect:

(1) Rule 38 provides a general discretion to award costs.

(2) The starting point in exercising such discretion is that the "usual order for costs" is that a successful party should be entitled to an order for costs in their favour.

(3) The reason for an order for costs being made is that it is considered to be appropriate for the party who incurred costs caused by the other party in litigation to be reimbursed. An award of costs is by way of indemnity to the successful party and not as a punishment to the unsuccessful party.

(4) The factors to be considered in awarding costs in a particular case are not confined as to do so would constrain the general discretion. However, factors that might influence whether the usual order for costs should apply include whether, by reason of the relative success of the parties on different issues and the time taken to determine those, that an order for costs based on issues should be made. Another factor might be whether by reason of the nature of the proceedings, the usual rule should otherwise be displaced in whole or in part.

1. McHugh J in Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [66] found:

"By far the most important factor which courts have viewed as guiding the exercise of the costs discretion is the result of the litigation. A successful litigant is generally entitled to an award of costs."

1. There may be circumstances which would justify a departure from the general principle such as the successful party has engaged in disentitling conduct or the successful party has unreasonably refused a Calderbank offer. However, no such circumstances have been put to us, as no submission opposing the costs application has been provided by the appellants.
2. The respondents were the successful parties on the appeal as the appeal was dismissed. We are therefore satisfied that the appropriate exercise of the costs discretion is to order the appellants to pay the respondents' costs of the Appeal.
3. The respondents have sought costs on an indemnity basis and we have reviewed their submissions which rely on the above "special circumstances" and the respondents Calderbank offer dated 15 January 2025, a copy of which was attached to the respondents' costs submission. It set out the terms of an offer to settle the Tribunal proceedings.
4. 'Calderbank' offers are made pursuant to the principles set out in Calderbank v Calderbank [1976] Fam Law 93; 3 All ER 333; 3 WLR 586. Such principles have been the subject of extensive judicial and Tribunal consideration. In Singapore Airlines Cargo Pty Ltd v Principle International Pty Ltd (No 2) [2017] NSWCA 340, the NSW Court of Appeal stated (at [30]):

"Calderbank offers are a well-established means of parties seeking to compromise proceedings in circumstances where, provided that the offer is a genuine offer of compromise and the opposing party unreasonably rejects the offer, the court may, in the exercise of its discretion, make a special costs order in favour of the offeror".

1. We note that the Calderbank offer relied on is not a Calderbank offer made in the Appeal, but in the Tribunal proceedings. Having regard to the comments of the Appeal Panel in Mendonca v Tonna [2017] NSWCATAP 176 at [59] that indemnity costs are only awarded in limited circumstances and caution should be exercised in making such an award, we are not satisfied that the circumstances set out by the respondents warrant the exercise of our discretion for the making of an orders for costs on an indemnity basis.
2. Accordingly we do not allow costs of the Appeal on an indemnity basis.

(1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) the Appeal Panel dispenses with a hearing for the costs application.

(2) The appellants are to pay the respondents' costs of the appeal proceedings including the stay application as assessed or agreed on the ordinary basis.

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.