Manana Farms Pty Ltd v Barambah Organics Dairy Farms Pty Ltd

1. BODF leased the farms from the owners from 30 September 2020 under four materially identical lease agreements (the leases) until their expiry on 29 September 2025.
2. Until late January 2026, Jane Campbell (Ms Campbell), who is a manager of the owners, represented of the owners. She was admitted as a lawyer in Queensland in 2021, holds a restricted practising certificate, does not practise as a lawyer and had no prior substantive experience in practising as a lawyer in tribunals or courts. Since late January 2026, Allan Lonergan (Mr Lonergan), a solicitor of South Geldard Lawyers Pty Ltd, has represented the owners.
3. Since 22 September 2022, Chris John Elliott (Mr Elliott) has been a director of BODF. At all material times, Mathew Allan Shelley (Mr Shelley), a solicitor of Herbert Smith Freehills Kramer, has represented BODF.
4. On 17 December 2024, the owners as the applicants commenced proceedings 2024/00468280 in the Consumer and Commercial Division of the Tribunal (CCD) against BODF as the respondent by lodging an application in which they sought compensation of $500,000.00 for the deterioration of the farms during the tenancy (the owners' application).
5. On 17 October 2025, the Tribunal constituted by Senior Member K Mortensen, Senior Member, following the hearing on 12 August 2025, made the dismissal decision (which was corrected on 23 October 2025) in which it:

(1) made the following orders together with procedural orders if either party wished to be heard on the question of costs (the dismissal orders) ([1]-[6]):

"1 The application is dismissed.

2 The applicants are to pay the respondents costs of the application on the ordinary basis as agreed or assessed, unless either party wishes to be heard on costs, in which case orders 3 to 6 below shall apply.

..."

(2) recorded its statement of reasons (the dismissal reasons) which have been summarised as follows:

(a) it sets out the background ([7]-[11]) noting that:

(i) the owners were seeking the following orders:

"(1) compensation in the sum of $500,000 for deterioration of the farms pursuant to s 19A of the Agricultural Tenancies Act 1990 (NSW) ("ATA");

(2) an order for immediate possession of the farms;

(3) an order for the payment of all rent due until the end of the lease term; and

(4) costs."

(ii) BODF by way of an offsetting claim was seeking an order for payment of $237,268 for capital improvements made to the farms;

(b) it finds that it has jurisdiction ([12]-[13]);

(c) it lists the evidence of the owners and BODF including the affidavit of Mr Elliott affirmed on 30 June 2025 (the 30 June 2025 Elliott affidavit) ([14]-[15]);

(d) as to the owners' claim for order 1, after summarising the submissions of the owners and BODF and the applicable law, it decides to dismiss the claim for compensation because of the owners' failure to adduce any evidence to satisfy the statutory measure of compensation and further or alternatively the claim was premature by reason of being made before the expiry of the leases as well the right to compensation under s 19A of the AT Act being displaced by the terms of the leases ([16]-[42]);

(e) as to the owners' claim for order 2, after summarising the submissions of the owners and BODF and the applicable law, it decides to dismiss the claim for possession of the farms because BODF had not abandoned the farms and notwithstanding its breach of the repair and maintenance covenant termination of the leases would not be a just outcome ([43]-[63]);

(f) as to the owners' claim for order 3, decides to dismiss the claim for future rent because the leases had expired ([64]-[45] which is a numerical error);

(g) as to BODF's offsetting claim, after summarising the submissions of the owners and BODF and the applicable law, it decides to dismiss the claim for compensation because of BODF's failure to adduce any evidence to satisfy the statutory measure of compensation ([67]-[76]);

(h) it decides costs should follow the event and the owners should pay BODF's costs of the proceedings on an ordinary basis as agreed or assessed unless either party wishes to be heard on the question of costs ([77]).

1. On 24 October 2025, the owners as the appellants commenced this appeal against BODF as the respondent by lodging the following documents:

(1) an application for a stay in which they sought a stay of order 2 of the dismissal orders (the stay application);

(2) a notice of appeal in which they:

(a) challenged orders 1 and 2 of the dismissal orders;

(b) sought leave to appeal on the following grounds (as conveniently summarised by BODF in Respondent's Submissions on Stay Application dated 4 November 2025 (the BODF stay submissions)):

"(a) a claim that the decision at first instance was not fair and equitable, on account of:

(i) an observation made by the Tribunal in the Decision regarding certain notices issued by the applicants to the respondent in October 2024;

(ii) the Tribunal's consideration in the First Instance Proceeding of a cross-claim advanced by the respondent;

(iii) the Tribunal's consideration of the respondent's argument at first instance that s 19A of the Agricultural Tenancies Act 1990 (ATA) was displaced by the terms of the leases from the applicants to the respondent, and the Tribunal's findings regarding the respondent's right to quiet enjoyment under the leases;

(iv) the Tribunal's finding that the applicants had failed to discharge their burden of proving their claimed loss as required by s 19A ATA (namely, the alleged diminution in the value of the leased premises);

(v) the Tribunal's finding that the leased premises had not been 'abandoned' as alleged by the applicants;

(vi) an alleged denial of procedural fairness on account of the Tribunal's reception of the respondent's written outline of submissions; and

(vii) the applicants' complaint about the form of execution of an affidavit relied upon by the respondent;

(b) a claim that the decision at first instance went against the weight of evidence filed by the applicants, and a submission that greater weight should have been given to four categories of documents identified in the notice of appeal;

(c) a claim that 'significant new evidence' is now available that was not reasonably available at the time of the hearing."

(c) set out the orders the Appeal Panel should make:

"1. Compensation of $500,000, or the value that the Tribunal determines, is to be paid to the applicants for the evident degradation of the four properties.

2. The applicant is NOT to pay the respondent costs of the application on the ordinary basis as agreed or assessed.

3. Costs are to be paid to the applicants for its disbursements that they have incurred in relation to this matter. For example, Experts costs, filing, and printing costs."

1. On 27 October 2025, the Appeal Panel constituted by myself dismissed the stay application in so far the owners sought an ex-parte interim stay, listed the appeal for a call over and the hearing of the stay application on 5 November 2025, and made procedural directions for the lodgement of evidence and submissions in relation to the stay application.
2. On 30 October 2025, the owners lodged their evidence and submissions signed by Ms Campbell in support of the stay application.
3. On 3 November 2025, the owners lodged a bundle of documents comprising 28 documents and 426 pages in support of the stay application.
4. On 3 November 2025, BODF lodged its reply to appeal in which it set out further reasons supporting the dismissal decision and reasons for opposing the grant of leave to appeal to the owners.
5. On 4 November 2025, BODF lodged the following documents:

(1) the affidavit of Shelley sworn on 4 November 2025 (the 4 November 2025 Shelley affidavit);

(2) the BODF stay submissions.

1. On 5 November 2025, the Appeal Panel constituted by myself made procedural orders for the hearing of the appeal including by order 1 by consent that leave is given to BODF to be legally represented, by order 2 by consent that the stay application is dismissed, by order 3 that there is no order as to the costs of the stay application, by order 6 that the owners lodge and serve their material in support of the appeal by 17 December 2025, by order 7 that BODF lodge and serve its material in opposition to the appeal by 4 February 2026, by order 8 that the owners lodge and serve any submissions in reply by 18 February 2026, and by order 9 listing the appeal for hearing on 14 April 2026 at 10.15 AM in Sydney for a half day (the 5 November 2025 AP orders).
2. On 17 December 2025, the owners lodged the following documents in support of the appeal:

(1) written submissions totalling 76 pages signed by Ms Campbell and dated 17 December 2025 (the 17 December 2025 owners appeal submissions);

(2) four lever arch folders totalling 2,268 pages comprising the documents submitted at first instance;

(3) one lever arch folder totalling 561 pages comprising the additional evidence upon which the owners indicated they intended to seek leave to rely in the appeal. This additional evidence included quotes and two new expert reports commissioned by and prepared for the owners.

1. On 6 February 2026, BODF lodged the following documents in opposition to the appeal:

(1) four lever arch folders totalling 3,362 pages comprising the documents at first instance and on appeal;

(2) Respondent's Submissions dated 4 February 2026 (the 4 February 2026 BODF appeal submissions).

1. On 17 February 2026, Mr Lonergan notified the Registrar that the owners wished to withdraw the appeal (the 17 February 2026 withdraw application).
2. On 18 February 2026, the Registrar sent a letter dated 18 February 2026 by email to the parties requesting their comments on the 17 February 2026 withdraw application.
3. On 20 February 2026, BODF lodged the following documents:

(1) the affidavit of Mr Shelley sworn on 20 February 2026 (the 20 February 2026 Shelley affidavit);

(2) Respondent's Submissions on Costs of the Appeal dated 20 February 2026 which included the BODF costs application (the 20 February 2026 BODF costs submissions).

1. On 23 February 2026, the Appeal Panel constituted by myself made an order dismissing the appeal upon its withdrawal by the owners, and procedural orders for the determination of the BODF costs application.
2. On 5 March 2026, the owners lodged the following documents:

(1) a transcript of the hearing on 12 August 2025;

(2) Appellants' Submissions on Costs of the Appeal dated 2 March 2026 (the 2 March 2026 owners costs submissions);

1. On 11 March 2026, BODF lodged Respondent's Reply Submissions on Costs dated 9 March 2026 (the 9 March 2026 BODF costs submissions in reply).

1. The determination of the BODF costs application will involve answering the following two questions:

(1) whether a hearing of the BODF costs application should be dispensed with;

(2) whether a costs order, and if so what costs order, should be made in favour of the BODF.

Whether a hearing of the WPH costs application should be dispensed with

1. The owners make no submission, and BODF makes no objection, as to whether a hearing of the BODF costs application should be dispensed with.
2. I am satisfied that the issues for determination in relation to the BODF costs application can be adequately determined in the absence of the parties by considering their evidence and written submissions. Accordingly, I have decided pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to make an order dispensing with a hearing in relation to the BODF costs application.

Whether a costs order, and if so what costs order, should be made in favour of BODF

1. The BODF costs application is pursuant to r 38A(2) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules). The determination of this application will involve answering the first and may involve answering the second and third of the following three questions:

(1) whether r 38A(2) of the NCAT Rules applies to the BODF costs application;

(2) if so, whether the discretion should be exercised to award costs in favour of BODF;

(3) if so, what costs order should be made.

1. It will be unnecessary to consider BODF costs application so far as BODF is seeking indemnity costs which is based on the evidence of Mr Shelley in the 20 February 2026 Shelley affidavit unless I answer the second question in favour of BODF.
2. Before dealing with this issue, it is appropriate to set out the applicable statutory provisions and legal principles, and to summarise the issues that would have arisen on the appeal and the submissions of the parties.
3. As the Appeal Panel on 5 November 2025 by orders 2 and 3 of the 5 November 2025 AP orders by consent of the parties dismissed the stay application with no order as to the costs, the BODF costs application does not relate to the costs of the appeal in and relating to the stay application. It follows that it is unnecessary to consider the BODF costs application so far as it relates to the stay application including the 4 November 2025 Shelley affidavit and the BODF stay submissions.

1. Part 4 Division 5 (ss 56-63) contains provisions dealing with participation in proceedings in the Tribunal. Section 60 deals with costs, and relevantly provides:

60 Costs

(1) Each party to proceedings in the Tribunal is to pay the party's own costs.

...

(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.

costs includes -

(a) ...

(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 deals with costs in the CCD, and relevantly 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 -

...

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

1. Rule 38A deals with costs in internal appeals, and relevantly provides:

38A Costs in internal appeals

...

(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. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 (LPDT) the High Court addressed jurisdictional error and materiality in the context of an appeal against an administrative decision. The plurality (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ) at [2]-[16] expounded the principles. Relevantly to this appeal they said at [6]-[7] and [13]-[14] (citations omitted):

"[6] In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. An example of the latter is unreasonableness in the final result. In such cases, the error necessarily satisfies the requirement of materiality.

[7] In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. ..."

"[13] The applicant must satisfy the court on the balance of probabilities that the alleged error in fact occurred. Unless the error is of a type such as those identified at [6] above (where the error is always material and therefore jurisdictional), whether the error is, or is not, material is determined by inferences drawn from the evidence adduced on the application.

[14] The question in these cases is whether the decision that was in fact made could, not would, "realistically" have been different had there been no error. "Realistic" is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous."

1. The general principles concerning the awarding of costs under r 38 of the NCAT Rules were considered by the Appeal Panel in Vella v Mir (No 3) [2020] NSWCATAP 17 (Vella (No 3)) at [28]-[29]:

"[28] Clause 38 gives the Tribunal a wide discretion to make an order for costs. It does not specify the factors the Tribunal must take into account in exercising the discretion, although the discretion to make such an order must be exercised judicially: see, for example, Ruddock v Vadarlis [2001] FCA 1865 at [9].

[29] Where an application has been heard and determined on the merits and Clause 38 applies, the appropriate starting point for the exercise of the discretion is not that the parties are to pay their own costs. Rather, it is the well-established position at common law; that is, that the purpose of making a costs order is to provide compensation to the party in whose favour the order is made for the expense the party has been put to in prosecuting or defending legal proceedings. In general terms, this means that a party who is successful is entitled to an order for costs in its favour, subject to exceptions generally involving misconduct on the part of that party: Latoudis v Casey [1990] HCA 59; [1990] 170 CLR 534; Oshlak v Richmond River Council [1998] HCA 11."

1. For the purpose of r 38A of the NCAT Rules the amount claimed or in dispute is the amount in dispute on appeal, not the amount in dispute in the proceedings at first instance: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [57].

1. The general principles concerning the awarding of costs where proceedings are discontinued or dismissed by consent were considered by McHugh J in Re Minister for Immigration & Ethnic Affairs of the Commonwealth of Australia; Ex Parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 624-625; [1997] HCA 6 (Lai Qin):

"In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order.

In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. ...

Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. ... But such cases are likely to be rare.

If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases." (citations omitted)

1. The general principles concerning the awarding of costs where proceedings are discontinued or dismissed by consent as summarised in Lai Qin at 624-625 have been applied in the courts and the Tribunal: see for example Alijagic v Australian Bosnian-Hercegovina Cultural Association Incorporated [2025] NSWSC 393 at [52]- [59] (Kunc J); Karpinski v The Owners - Strata Plan No 1731 [2026] NSWCATAP 12 at [22].

1. It is unnecessary to set out all the issues that would have arisen on the appeal by summarising the appeal submissions of the parties. It is sufficient to note the following issue:

(1) the owners in the 17 December 2025 owners appeal submissions contended that the Tribunal failed to accord procedural fairness to them in circumstances where it allowed into evidence over their objection the affidavit of Mr Elliott affirmed on 11 August 2025 (the 11 August 2025 Elliott affidavit) which had been served upon them at 3.34pm on that day;

(2) BODF in the 4 February 2026 BODF appeal submissions contended that the evidence given by Mr Elliott in the 11 August 2025 Elliott affidavit did not raise new issues for consideration or expand its defence of the owners' claims. In particular, Mr Elliott updated four matters raised in the 30 June 2025 Elliott affidavit which were prospective or unresolved at that time, and otherwise put into evidence certain correspondence upon which it intended to rely. In response to their objection, the Tribunal granted the owners leave to file further written material following the hearing, which they did. It appears that the Tribunal did not consider the evidence in the 11 August 2025 Elliott affidavit, but even if it did there was no evidence capable of causing prejudice to the owners.

1. BODF in the 20 February 2026 BODF costs submissions relevantly submits that because the proceeding at first instance was commenced in the CCD, and the quantum was greater than $30,000, special circumstances are not required for the Appeal Panel to award costs. Costs should follow the event in the usual way.

1. The owners in the 2 March 2026 owners costs submissions relevantly submit:

(1) it is far from clear that r 38(2) of the NCAT Rules is intended to apply to internal appeals brought before the Appeal Panel;

(2) factors relevant to the exercise of the Appeal Panel's discretion in this case include the context of the appeal and the first instance decision. In particular:

(a) their claim for compensation failed on a relatively technical point, namely that they failed to prepare their valuation evidence quantifying loss in the particular manner required by the relevant statutory provision. This is an issue that arises uniquely from the terms of that provision, having regard to prior decisions of the Tribunal about the implications of those terms for the way in which compensation must be quantified;

(b) the dismissal decision included the finding of BODF's breach of the repair and maintenance covenant in the dismissal reasons. This reflected a substantial measure of success on key factual matters;

(c) important evidence (the 11 August 2025 Elliott affidavit) was filed and served by BODF very late (the day before the hearing), without adequate explanation for the delay. This affidavit included an update in relation to steps BODF said it was taking to remediate the matters complained of by them. The taking of those steps formed the basis on which the Tribunal exercised a discretion not to grant an order for possession of the farms (despite the substantive finding of BODF's breach of the repair and maintenance covenant);

(3) these aspects of the dismissal decision were coupled with an understandable frustration on their part that, having commenced the first instance proceedings in December 2024, they were not heard until just before the leases expired and not determined until after they had expired;

(4) having regard to these objective facts, the filing of an internal appeal was not unreasonable conduct by them, where they had not retained external lawyers. There were indicators on the face of the dismissal decision that there may be sound grounds for an appeal. It is not conduct that warrants the making of a costs order adverse to them. When they subsequently obtained independent legal advice in late January 2026, the appeal was withdrawn. This avoided further use of the Appeal Panel's time and resources;

(5) accordingly, the Appeal Panel ought not exercise its discretion to make an award of costs against them.

1. BODF in the 9 March 2026 BODF costs submissions in reply relevantly submits:

(1) rule 38A of the NCAT Rules applies and requires the Appeal Panel to adopt the same principles applicable to costs in the proceeding at first instance. As to the proceedings at first instance, the default position under s 60 of the NCAT Act that each party shall pay its own costs was displaced by r 38 of the NCAT Rules, which permitted the Tribunal to make a party/party costs order in the absence of any special circumstances, because relevantly the amount unsuccessfully claimed by the owners exceeded $30,000;

(2) the matters raised by the owners do not support the Appeal Panel departing from the usual approach that costs should follow the event in the appeal. It would be inappropriate for the Appeal Panel to now consider the merits or otherwise of the withdrawn grounds when deciding the question of costs. The owners' frustration or otherwise with the Tribunal's case management processes at first instance is irrelevant;

(3) the objective facts are that the owners' claim for compensation failed on a "fundamental" basis at first instance, and their application for possession was held to be "without merit". There was no "substantial success" enjoyed by them on their claims. The now withdrawn grounds of appeal advanced in this appeal could not have overcome those fundamental deficiencies. The proceedings at first instance were misguided; the appeal even more so;

(4) the owners have since (rightly) chosen to abandon the appeal, rather than file submissions in reply or proceed to a hearing. However, that occurred only after the appeal was well-advanced. It was required to incur significant costs associated with:

(a) analysing the 23 page notice of appeal (and 126-page annexure) and 575 pages of proposed new expert reports and evidence filed on 27 October 2025;

(b) preparing its reply to appeal lodged on 3 November 2025;

(c) defending an application for a stay of the Tribunal s orders at first instance (ultimately dismissed by consent);

(d) analysing the further 76 pages of appeal submissions filed by the owners on 17 December 2025; and

(e) preparing the responsive submissions and material filed on 4 February 2026;

(5) an order for it to have its costs of the appeal is appropriate, not only in recognition of the significant expense to which it has been put in defending a position that has been wholly vindicated, but in light of "the unreasonable conduct of the (owners) in the course of the appeal". That conduct includes:

(a) advancing spurious grounds of appeal with no meaningful prospect of success;

(b) making a wholly inappropriate application for a stay of the proceedings at first instance (to which it was nevertheless required to respond);

(c) inundating the Appeal Panel and it with prolix, irrelevant, and scandalous submissions and extensive proposed new evidence; and

(d) making baseless allegations of misconduct against its officers and its solicitors. Ms Campbell, while not an experienced practitioner, is nevertheless legally qualified, admitted to practise and the holder of a current practising certificate. Inexperience is no excuse for the owners to have conducted the appeal in the manner they did. Ms Campbell should have conducted the proceeding appropriately, or at least recognised the need for the appellants to obtain suitably qualified representation before commencing and prosecuting the appeal.

Whether r 38A(2) of the NCAT Rules applies to the BODF costs application

1. I am satisfied that r 38A(2) of the NCAT Rules applies to the BODF costs application for the following reasons:

(1) the first instance costs provision was r 38(2)(b) of the NCAT Rules because the amount claimed by the owners in the owners' application was more than $30,000;

(2) the amount claimed by the owners on the appeal was more than $30,000.

If so, whether the discretion should be exercised to award costs in favour of BODF

1. But for the applicable of the principles summarised in Lai Qin at 624-625, I would have exercised the discretion under r 38A(2) of the NCAT Rules in accordance with the principles summarised in Vella (No 3) at [28]-[29] to make an order that the owners pay BODF's costs of the appeal. I would not have regarded any of the matters relied on by the owners in the 2 March 2026 owners costs submissions as warranting a departure from the starting position that the owners should pay BODF's costs of the appeal.
2. I note that BODF has not expressly referred to the principles summarised in Lai Qin at 624-625 in either of its costs submissions.
3. To the extent that BODF in the 9 March 2026 BODF costs submissions in reply in making its submission about "the unreasonable conduct of the (owners) in the course of the appeal" has obliquely submitted that either of the exceptions referred to by McHugh J in Lai Qin at 624-625 is applicable, I disagree. It is inappropriate for me to undertake a hypothetical hearing of the appeal to determine whether the owners would have established that the alleged failure of the Tribunal to accord procedural fairness to them by its admission of the 11 August 2025 Elliott affidavit into evidence constituted jurisdictional error within the principles in LPDT at [6]-[7], [13]-[14] by reason of meeting the threshold of materiality that is not demanding or onerous. I do not accept that it was unreasonable for the owners to have commenced the appeal or that this appeal falls within the rare case that BODF was almost certain to have succeeded if the appeal had been heard. It follows that I have decided not to exercise the discretion under r 38A(2) of the NCAT Rules to make an order that the owners pay BODF's costs of the appeal, and to make orders dismissing the BODF costs application and as provided by s 60(1) of the NCAT Act that each of the owners and BODF should pay their costs of the appeal.

1. As I have decided not to exercise the discretion under r 38A(2) of the NCAT Rules to make an order that the owners pay BODF's costs of the appeal, this question dies not arise for consideration.

(1) A hearing of the costs application of the respondent is dispensed with.

(2) The costs application of the respondent is dismissed.

(3) Each of the appellants and the respondent are to pay their costs of the appeal.

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.