McDermott v Wang

NCAT Appeal Panel|2022-06-27|Before: Blake AM

Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 5 April 2022 Before: D Charles, Senior Member File Number(s): SC 20/04566; SC 21/37001

Summary

This is an appeal filed by the Appellant seeking the Appeal Panel to set aside an order that he pay the costs of the Respondents in the proceedings below.

Background

On 5 April 2022, the Tribunal published its Reasons for Decision (the "Decision") in a costs application determined in the Consumer and Commercial Division (the "CCD"). The parties to the appeal are Bruce McDermott (the "Appellant") and Selina Wang, Oren Werker, Richard Ristwej, and The Owners - Strata Plan No. 3470 (the "Respondents").
The costs application arose from two proceedings in the CCD under the Strata Schemes Management Act 2015 (NSW) (the "SSMA"). The proceedings were allocated file numbers SC 20/04566 (the substantive application) and SC 21/37001 (the interim application).
The following useful summary of the substantive application is set out in the Decision at [15]: "The substantive orders' proceeding was brought to the Tribunal by an application of the Applicant lodged on 29 January 2020. The Applicant sought various orders and 'declarations' under sections 229, 232, 238 and 241 of the SSMA, which in summary would have the effect of removing the First and Second Respondents from the strata committee (in the Applicant's submission, the principal relief sought), granting voting powers to the Applicant (with the Third Respondent), and enforcing the Owners Corporation to take a series of steps and to make various declarations to invalidate motions passed by the Respondents (at general meetings of the scheme on 6 June 2019 and 2 September 2019 and strata committee meetings on 30 July 2019, 2 and 26 September 2019, and 11 November 2019), including to carry out remedial works to the common property boundary wall all on the basis of alleged misleading conduct and irregularities in the procedures followed by the Respondents."
A similar useful summary of the interim application is set out at [26] - [28] of the Decision: "[26] On 27 August 2021, the Tribunal received the application of Mr MacDermott in the interim orders' proceeding, which sought interim orders (SSMA, s 231) that the Respondents be restrained from taking further steps, directly or indirectly, to put into effect various resolutions as recorded in the minutes of general meetings of the scheme on 6 June 2019 and also in the minutes of strata committee meetings held on 2 and 26 September 2019. [27] The interim orders' proceeding was brought in this context: Mr MacDermott had received a Notice of Annual General Meeting of the scheme scheduled for 5:00 pm Monday 30 August 2021 (30 August 2021 AGM) with a proposed resolution (resolution 15) for the lodgement of a complying development application with North Sydney Council (DA) concerning boundary wall remediation in the common property of the scheme; he had then written to the strata managing agent by letter dated 18 August 2021 stating if the DA goes ahead it will make his application for other orders in the substantive orders' application "nugatory" and therefore requesting the scheme to withdraw resolution 15 from consideration at the 30 August 2021 AGM. [28] On 31 August 2021, the Tribunal made the following orders in both proceedings: 1. The application for interim orders is to be listed for hearing and the application for substantive orders is to be listed for directions on 6 September 2021. 2. By 1 September 2021, the applicant is to provide to the respondents and the Tribunal evidence and submissions in support of the application for interim orders. The applicant is also to provide to the respondents a copy of all documents attached to the application. 3. By 3 September 2021, the respondents are to provide to the applicant and the Tribunal any evidence and submissions in response to the application for interim orders. 4. Evidence and submissions must specifically address: a) Whether urgent considerations warrant the making of orders on an interim basis; b) If so, the nature of the urgent considerations; and c) Whether the applicant is prepared to make the usual undertaking as to damages: that is, whether the applicant agrees to pay compensation to the other parties if the other parties suffer loss as a result of an interim order being made and any application to prevent any disputed works being carried out is ultimately unsuccessful. 5. For the hearing on 6 September 2021 only, the parties may lodge documents with the Tribunal electronically via the portal on the Tribunal's website, using the instructions on the Tribunal's website. See https://forms.justiceassist.nsw.gov.au/ccd-submission-evidence-filing."
On 6 September 2021, the interim application was dismissed with the costs of and incidental to the interim application to be "costs in the cause".
On 6 October 2021, the substantive application was withdrawn by the Appellant and dismissed by the Tribunal pursuant to s 55(1)(a) of the Civil and administrative Tribunal Act 2013 (NSW) ("the NCAT Act").
On 28 October 2021, the Respondents filed a folder containing documents and submissions in support of a costs order against the Appellant.
On 2 November 2021, the Tribunal ordered that the costs application be determined on the papers, dispensing with the need for a hearing. The parties filed written submissions on Costs.
On 14 February 2021, the president pursuant to s 52(1) of the NCAT Act, reconstituted the Tribunal because a Senior Member became unavailable.
On 5 April 2022, Senior Member Charles made the Decision. The relevant parts of the decision are set out at [67]-[69]: "[67] Nevertheless, I accept the Respondents' submission that within the meaning of s 60(3)(g) a relevant "other matter" to support a finding of "special circumstances" is the fact that the Applicant did not provide any, or any sufficient, evidence, to establish urgent considerations which justify the making of interim orders, a requirement in s 231 of the SSMA and an express direction of the Tribunal (see orders 4(a) and 4(b) made on 31 August 2021).The interim orders' application was lodged with the Tribunal on 27 August 2021, a matter of 4 days prior to the 30 August 2021 AGM. Even allowing for the fact that initially the Registry was unable to find the Tribunal's File in the substantive orders' proceeding (File No SC 20/04566) such that directions could not be sent to the parties until 31 August 2021, and the hearing of the interim orders' application was not listed until 6 September 2021, I doubt whether a hearing before the AGM was feasible, and more importantly, I doubt whether a listing on or before 30 August 2021 would have made any difference (e.g. a "short adjournment" of the AGM, as the Applicant submitted at [26] of his Submissions on Costs) to the outcome of the interim orders' application. This is because the Senior Member found there was no evidence demonstrating an intention of the Owners Corporation to commence the remediation works on the boundary wall immediately. The Senior Member also accepted, and found, that such a commencement of works required DA approval from North Sydney Council and that would take "some months". [68] The application for interim orders was dismissed, with costs of the application to be "costs in the cause" meaning the costs were to be considered in the context of the substantive orders' proceeding. While the purpose of a costs order is not to punish an unsuccessful party, its purpose is to indemnify the successful party where fairness dictates that if the litigation had not been brought, or defended by, the unsuccessful party, the successful party would not have incurred the expenses which it did. [69] For these reasons, in respect of the Respondents' application for costs in the interim orders application, I find that there are "special circumstances" warranting a departure from the general position under s 60(1) of the NCAT Act that each party is to bear their own costs of the proceeding." [Our emphasis]
The Tribunal's reference to the decision in interim application hearing was the of Senior Member Meadows made on 6 September 2021 as follows: "On 06-Sep-2021 the following orders were made: 1. The application is dismissed because having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof that the grounds required to make the orders sought have been established. 2. Costs of and incidental to this application for interim orders are to be costs in the cause. REASONS This was an application for interim orders, essentially and principally seeking interim orders in the form of certain orders included in the original, substantive, application SC 20/04566. Although the applicant outlined in some detail the background of the application, and made a number of serious allegations of serious misconduct, there was no evidence of the necessary urgency. The closest the applicant came was to assert that a resolution made at a recent general meeting "removed the last obstacle" to the impugned works in relation to a retaining wall or walls commencing more or less immediately. There was no evidence to support that claim and in particular no evidence demonstrating an intention to commence those works immediately. I accept the submission of the respondents that such a commencement would normally take some months, given the usual planning procedures. Even if Mr Bacon was incorrect in fact in that submission, there is still no evidence to suggest otherwise."
Upon making this finding, the Tribunal at [76] ordered: "(1) In the proceeding constituted by File No SC 20/04566 the Respondents' application for costs is dismissed and the parties are to bear their own costs of the proceedings. (2) In the proceeding constituted by File No SC 21/37001 the applicant is to pay the Respondent's costs of an incidental to the hearing of the interim application on 6 September 2021 on the ordinary basis as agreed or as assessed in accordance with the applicable costs legislation; otherwise, each party is to bear their own costs of the proceeding."

The Appeal

On 4 May 2022, the Appellant filed a Notice of Appeal against the Decision. He seeks orders that order (2) in [13] above set aside, and in substitution thereof the parties bear their own costs of the proceedings. The following grounds of appeal are relied upon by the Appellant: 1. the Appellant may have suffered a substantial miscarriage of justice because: 1. In the circumstances before the Tribunal, Order (2) was not fair and equitable, or 2. In the circumstances before the Tribunal, Order (2) was against the weight of evidence; 1. the Tribunal made error of fact (which led to errors of law) in the Decision.
The Respondents contend the Decision was fair and equitable, it was not against the weight of evidence and the Tribunal made no error of law.

Leave to amend the Notice of Appeal

In the Notice of Appeal, the words "Respondents gave no evidence and showed the Tribunal no documents" appear in support of the grounds of appeal that the Decision was against the weight of evidence. The Appellant sought leave to amend the Notice of Appeal to strike out those words. The amendment was not opposed. Leave was granted to strike out and delete those words.

Material relied upon in the Appeal

The Appellant relied upon the Notice of Appeal, written submissions and a 250 page bundle filed on 10 June 2022.
The Respondents filed a Reply to Appeal and written submissions.

Scope and nature of internal appeals

Internal appeals may be made as of right on a question of law or with the leave of the Appeal Panel on any other grounds: s 80(2)(b) of the NCAT Act.
An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the Appellant must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal.
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel set out at [13] the following non-exclusive list of questions of law: 1. whether there has been a failure to provide proper reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether a wrong principle of law had been applied; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. whether the Tribunal took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; 8. whether the decision is so unreasonable that no reasonable decision-maker would make it.
The question of whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law: Hope v The Council of the City of Bathurst (1980) 144 CLR 1 at 7; [1980] HCA 16 (Mason J).
An appeal in relation to a costs decision which suggests that the discretion of the Tribunal may have miscarried in the sense of House v R (1936) 55 CLR 499 (House v The King) at 504-5; [1936] HCA 40 raises a question of law. Otherwise leave to appeal must be sought: Nelson v The Owners - Strata Plan No.49504; The Owners - Strata Plan No.49504 v Nelson [2020] NSWCATAP 194 (Nelson) at [42].
In House v The King at 504-5 Dixon, Evatt and McTiernan JJ stated: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution, for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
In Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 (AHNA) Bathurst CJ and Leeming JA at [9]-[10] explained the nature of the error when a decision "is unreasonable or plainly unjust" in the following terms: "[9] It is one thing for the reasons given by the primary judge to disclose appellable error. If so, that is addressed by the formulations of principle in the first half of the passage from House v The King. That is not an end of the matter. There may be cases where the reasons do not disclose why the impugned orders were made. In such cases, even though no error of principle or other well recognised basis for appellate intervention may be discerned on the face of the reasons, an appellate court may nonetheless intervene. The reason is that it may be inferred in light of the result that there was appellable error in the unstated reasons which led to the order. This is plain from the passage when read as a whole: "It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." (House v The King at 505) [10] It is wrong to seek to apply the references to "unreasonable or plainly unjust" in that passage in isolation. The premise of this aspect of the test in House v The King is that the reasons do not explain the result reached."
It is fundamental that deference is to be given by an appellate court to the discretionary decisions of judges at first instance, insofar as it is insufficient for the appellant merely to persuade the appellate court that it would have decided the matter differently: AHNA at [13], [18]-[19] (Bathurst CJ and Leeming JA).
These principles are applied in the Tribunal in relation to an appeal against the making of an order for costs in favour of a party under s 60 of the NCAT Act: see, for example, Cusick Real Estate Pty Ltd t/as L J Hooker Gosford v Kochan [2017] NSWCATAP 191 at [25]; Nelson at [55].
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17 (Collins). They are the same principles applied by the courts. In Collins, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where: "… there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance." (emphasis in original)
In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that: 1. if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 of the NCAT Act; 2. the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act.
In Collins, the Appeal Panel at [84(2)] stated that ordinarily it is appropriate to grant leave to appeal only in matters that involve: "(a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."
The Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including but not limited to an order that the appeal is to be dismissed: s 81(1)(a) of the NCAT Act.
Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the "NCAT Rules") relevantly provides that in the case of an appeal from a decision of the Tribunal an internal appeal must be lodged within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision.
In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), the Appeal Panel at [13] stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal.

The questions to be determined in the appeal

The Appellant agreed the following questions are to be determined in the appeal: 1. could the Tribunal find special circumstances by reason of "any other relevant matter" as specified in s 60(3)(g) of the NCAT Act namely, a lack of urgency? and if so, was there was a finding of lack of urgency in the Appellant bringing the interim application by the Tribunal? 2. was there an error in the exercise of the Tribunal's discretion to make a costs order pursuant to s 60(2) of the NCAT Act?
As will be seen the Appellant in his submissions contended that there were the following eight errors of law in the Decision by reference to the questions of law identified in Prendergast at [13]. While the Appellant did not refer to the miscarriage by the Senior Member of the exercise discretion s 60(2) of the NCAT Act in the sense of House v The King as raising a question of law, having regard to the principles in Cominos at [13], it will be convenient to consider the eight errors of law for which the Appellant contends within the framework in [36] above. It will also be necessary to consider the anterior issues of whether the Tribunal failed to afford procedural fairness to the Appellant and failed to provide proper reasons for the Decision.
The NCAT Act provides in s 60: 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. [Our emphasis]
The Tribunal's task, therefore, was to determine whether there were special circumstances warranting an order for costs in the interim application, bearing in mind that the usual course is that each party pays its own costs.
In Edwards v Commissioner for Fair Trading, Department of Customer Service (Costs) [2019] NSWCATAP 249, at [9], the Appeal Panel said: "Special circumstances are circumstances that are out of the ordinary, but need not be those which are exceptional or extraordinary. These principles are well established and have been consistently applied in this Tribunal: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]; Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222 at [8]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32]."
The Tribunal's discretion to award costs must be exercised judicially, and not arbitrarily, capriciously or so as to frustrate the legislative intent: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [22].
A costs order is compensatory and not punitive: Dr Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90 at [22].

The Appellant's submissions

In oral submissions, the Appellant referred to Prendergast and contended that there were the following eight errors of law in the Decision: 1. the Tribunal failed to provide reasons, or proper reasons for the Decision. In his written submissions he says "…it is impossible rationally on the evidence for the Senior Member to have found that the Appellant in his circumstances could or should have done certain things". The Senior Member was then in error in finding that the "special circumstances" exist based on the failure of the Appellant to have taken certain actions pursuant to s 60(g) of the NCAT Act; 2. the Tribunal identified the wrong issue or wrong question; 3. the Tribunal applied the wrong principle. However, he agreed that he does not challenge the finding made at paragraph [45] of the Decision where the Senior Member went into great detail correctly setting out the statement of principal concerning the operation of s 60(2) of the NCAT Act; 4. the Tribunal failed to afford the Appellant procedural fairness in not conducting an oral hearing. He submitted that he had no opportunity to make oral submissions. Further, he submitted that it was unrealistic to expect an unrepresented litigant to act in a certain way which led to the finding that the interim application was not urgent; 5. there was a failure to take into account a mandatory consideration referring to s 38(2) of the NCAT Act requiring the Tribunal to follow the rules of natural justice; 6. there was no evidence to support a finding of fact, namely a lack of urgency. Conversely, the Appellant says the following evidence was before the Tribunal evidencing the question of urgency: 1. the Tribunal accepted some urgency but not immediacy; 2. the words used by the Tribunal "no evidence" in reference to urgency must mean insufficient evidence to satisfy the Tribunal of the necessary [immediate] urgency, rather than not providing any evidence at all of any urgency; 3. the neglect or refusal of the Respondents to respond in any way to the Appellant's letter of 18 August 2021, particularly given the propensity of the Respondents to push ahead "knowingly" with unlawful conduct, leads reasonably to the inference of immediate urgency. If a response had been received along the lines of the submissions (though not evidence) later introduced by the Respondents at the interim hearing, it may well have been that the Interim Application would not have been filed or, if filed, would have been withdrawn; 4. the fact that the DA was for a "complying development" means, as a matter of law, that the DA would not go through the ordinary North Sydney Council processes for approval; and 5. the fact that the Respondents offered no evidence at all that development approval for the boundary wall remediation works would take "some months"; 1. the Decision is so unreasonable no reasonable decision maker would have made it; 2. the Decision misapplies fair balance and reasonableness in the circumstances of the parties. It misapplies what is practical and functional in the way the parties acted. The Appellant contends the conduct of the Respondents should have been given greater weight for the following reasons: 1. the Respondents did not respond to his letter of 18 August 2021; 2. the conduct of the Respondents' solicitor in ignoring the Appellant's correspondence may breach s 36(3) of the NCAT Act; 3. it appears unbalanced for the Respondents to obtain the benefit of a costs order when they were repeatedly in breach of the SSMA and failed to respond to the Appellant's correspondence.
As to leave to appeal, the Appellant contends, if leave is required the Tribunal's reasons for finding special circumstances under s 60(3)(g) of the NCAT Act referring to paragraph [67] of the Decision and onwards, are insufficient and the exercise of the discretion to make a costs order is wrong. The Appellant referred to paragraphs [66] - [68] as the parts of the Decision containing error. However, he could not identify the error and he did not press the submission any further.
The Appellant in his written submissions contends the following matters which evidence that the Decision was not 'fair or equitable': 1. the Decision was based on inaccurate facts; 2. the Senior Member did not take proper account of the evidence; 3. the words used by Senior Member Meadows "no evidence" must be considered in their proper context (refer to [43(6)(b)] above); 4. the Appellant's circumstances were not properly considered, namely, he had no access to the internet, he was not legally represented, factual inaccuracies in the Decision); 5. no account was properly taken for the presumption in s 60(1) of the NCAT Act that each party bear its own costs; 6. a finding of no evidence of urgency was made; 7. a finding by Senior Member Meadows that the DA approval would take "some months" was made on no evidence at all; and 8. the findings at [68] were based on a perceived imbalance between the parties.
Therefore, the Appellant submits that leave to appeal should be granted.

The Respondents' submissions

No inference should be drawn from the President's reconstitution of the Tribunal. This is because the parties agreed to it. We accept this submission.
The Tribunal correctly determined there was no evidence to establish urgency in bringing the interim application and the Appellant failed in his onus to do so. The only documents which the Appellant relied upon were those attached to his initial application and they did not establish urgency.
The Tribunal's discretion in awarding costs must be considered in connection with the threshold found in s 231 of the SSMA which clearly elevates the urgency from mere perception or presumption to "be satisfied on reasonable grounds of urgency".
Section 231 of the SSMA provides: 231 Interim order (1) If an applicant for an order by the Tribunal under this Act requests the making of an interim order and the Tribunal is satisfied on reasonable grounds that urgent considerations justify the making of the order, the Tribunal may-- (a) make an interim order in the form of any order that could otherwise be made by the Tribunal, and (b) renew the interim order by giving notice that the order is renewed if a request for its renewal is made not later than 3 months after the order was made. [Our emphasis]
The Respondents contend that the Appellant failed to demonstrate any document contained "reasonable ground of urgency". Rather all the documents relied upon were based on subjective perceptions and opinions of the Appellant.
Finally, the Appellant has not established any error of law as identified in Prendergast. Therefore, he requires leave to appeal and he has failed to establish any of the principles in Collins, and leave to appeal should be refused. The appeal should be dismissed with costs.

Introduction

We are satisfied that the appeal was commenced within the time of 28 days prescribed under r 25(4)(c) of the NCAT Rules.
As a general observation the Appellant referred us to pages 213 - 222 of his written submissions. Those parts of his written submissions refer to various paragraphs of the Decision and a previous decision of Senior Member Meadows (which was not appealed) and is not the subject of this appeal. He attempted to argue with the Decision (and findings made in Senior Member Meadows' decision) rather than grapple with the four questions of law which are set out at paragraphs [36] and [37] above.

Whether the Tribunal failed to afford procedural fairness to the Appellant

The Appellant contended that he was not afforded procedural fairness because the reconstituted Tribunal did not allow the parties to appear in person. The Appellant agreed that Senior Member Meadows ordered that costs would be determined under s 50(2) of the NCAT Act but that he made that decision in the absence of the parties. The Appellant agreed that he did not request a copy of the sound recording nor a transcript of the hearing: this was despite the order of the Appeal Panel to do so on 18 May 2022. The Respondents submitted that the parties agreed with this course at the hearing. Without a transcript or a copy of the sound recording, the Appellant has not established any error.
The Appellant also contended that fact finding process undertaken by the Tribunal led to an unrealistic expectation for an unrepresented litigant to act in a certain way, which was procedurally unfair. He referred to the Tribunal's finding at [71] that he "…could have withdrawn the application for interim orders on or shortly after 30 August 2021 when it became apparent to him that he could not provide sufficient evidence as to urgent considerations within s 231 of the SMAA …" and comply with the Tribunal's orders made on 31 August 2021. We reject this submission. There was no unfairness in the way in which the Tribunal determined the application, which included lengthy submissions provided by the parties on costs.
For completeness, the Appellant has not demonstrated any contravention of s 38(2) of the NCAT Act which might lead to a denial of procedural fairness. We reject the Appellant's contention that the Respondents' failure to respond to correspondence from the the Appellant establishes any error. This ground fails.

Whether the Tribunal failed to provide proper reasons for the Decision

In NSW Land and Housing Corporation v Orr [2019] 100 NSWLR 578; [2019] NSWCA 231 (Orr) Bell P at [66], [68], [70], [71] and [77] set out the following principles with respect to the adequacy of reasons of the Tribunal (with Ward JA at [109] agreeing): "[66] In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] (Resource Pacific). The standard is not one of perfection: Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 255 (Bisley)." "[68] In terms of the former parameter, the quantity (or detail) of reasons, necessary for those reasons to be adequate may vary both with the nature of the decision maker, i.e. whether or not it is a court of tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided: Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56] per French CJ and Kiefel J (Wainohu). Thus even superior courts are not required to give reasons for every interlocutory decision: Wainohu at [56], [98], Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [42]; Lodhi v Attorney General (NSW) [2013] NSWCA 433; 241 A Crim R 477 at [29]; R v Kay; Ex parte Attorney-General (Qld) [2017] 2 Qd R 522; [2016] QCA 269 at [27]) and other aspects of decision making such as findings on pure credibility or matters that necessarily call for estimation or impression may require less or only allow for limited reasoning to be exposed: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 but cf. Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34], Pollard at [65] and see the discussion in Resource Pacific at [48]−[58]." (emphasis in original) "[70] As to the latter parameter identified by Basten JA in Resource Pacific, namely the quality of reasons, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court." (emphasis in original) [71] That having been said, even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party): (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that lead the Tribunal to the conclusions it made. [77] These principles include the following: (i) "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole": Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [14] (Gleeson CJ); (ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; 20 ATR 108 at 111; (iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251; (iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Pozzolanic at 287; Wu Shan Liang at 272, 291; (v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291."
The observations in Orr at [66], [71] and [77] have been recently applied by the Appeal Panel: Origin Concepts Pty Ltd v Wynne [2022] NSWCATAP 31 at [20]-[23]; P8 Auto Ltd t/as European Automotive Ballina v Dolling [2022] NSWCATAP 41 at [18].
The Appellant was unable to clearly identify any failure of the Tribunal in providing proper reasons for the Decision. On the contrary, the Tribunal carefully set out, in great detail, a history of the proceedings and how it came to the conclusion that there was no evidence justifying the making of an interim order, which is required by s 231 of the SMAA and was required by the express order of the Tribunal on 31 August 2021.
Paragraph [67] of the Decision (as set out in paragraph [11] above) is an example of the detailed reasons provided by the Tribunal. This ground fails.

Could the Member Tribunal find special circumstances by reason of "any other relevant matter" as specified in s 60(3)(g) of the NCAT Act namely, a lack of urgency? and if so, was there was a finding of lack of urgency in the Appellant bringing the interim application by the Member Tribunal?

In paragraph [67] of the Decision the Senior Member has identified the Appellant's failure to establish "urgency" that was required to support an interim order. The Senior Member was not in error in considering the timeline which is set out in [67] and ultimately finding the Appellant failed to satisfy the onus in s 231 of the SSMA.
The Appellant seeks to draw on purported inaccuracies in findings of fact by Senior Member Meadows. He is unable to do this as that decision is not relevant to this appeal. We find the Senior Member was not in error in making the findings set out in [67]. We reject the Appellants interpretation of the words used by Senior Member Meadows "no evidence" referring to the issue of urgency. The words in our view should be given their ordinary meaning. The Tribunal correctly relied upon them in the Decision. The Appellant has not demonstrated error.
The expression "any other matter that the Tribunal considers relevant" in s 60(3)(g) of the NCAT Act is one of great breadth. We are satisfied that the Tribunal was entitled to find that the Appellant's failure to establish "urgency" that was required to support an interim order was a relevant matter within s 60(3)(g) of the NCAT Act and accordingly was entitled to find that there were special circumstances within s 60(2) of the NCAT Act.

Was there an error in the exercise of the Member's Tribunal's discretion to make a costs order pursuant to s 60(2) of the NCAT Act?

The Tribunal identified the wrong issue or wrong question and applied the wrong principle

The Appellant referred the Appeal Panel to pages 237 - 238 of his written submissions which refer to alleged errors of fact. His submissions do not relate the Tribunal identifying the wrong issue or question.
We note paragraph [45] of the Decision, the Senior Member set out in detail the correct principles for determining "special circumstances" pertaining to s 60(2) of the NCAT Act. Paragraph [45] is repeated below: "[45] In considering whether "special circumstances" exist for the purposes of s 60(2) of the NCAT Act: (1) Each case will depend upon on its own particular facts and circumstances: Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152 at [27]. (2) The discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]. (3) Mere success (or failure) of an application does not give rise to special circumstances: The Owners - Strata Plan 5319 v Price [2020] NSWCATAP 245 at [46]; (4) Withdrawal of proceedings in the Tribunal whether at first instance or on appeal, may in some circumstances, constitute sufficient "special circumstances" to justify a costs order (Rodny v Stricke [2020] NSWCATAP 20. In other circumstances, withdrawal of proceedings is not sufficient to constitute sufficient "special circumstances" to justify a costs order (Durran t/as Canberra Sheds and Outdoor Storage v Bliss [2018] NSWCATAP 43; Dehsabzi v The Owners-Strata Plan No 8355 [2019] NSWCATAP 65). However, it is clear that the mere fact that proceedings are withdrawn is not, of itself, a sufficient "special circumstance" to justify a costs order. (5) If a proceeding is withdrawn at a relatively early stage, this weighs against departure from the principle in section 60 (1) of the NCAT Act that each party pay its own costs: The Owners - Strata Plan 70871 v Turek [2022] NSWCATAP 83 (28 March 2022) at [28]. (6) If a proceeding is withdrawn at a relatively early stage, this weighs against departure from the principle in section 60 (1) of the NCAT Act that each party pay its own costs: The Owners - Strata Plan 70871 v Turek [2022] NSWCATAP 83 (28 March 2022) at [28]. (7) Where "special circumstances" are found to exist, the Tribunal has discretion to exercise in deciding what, if any, order should be made. The use of "may" in the opening words of s 60(3) indicates that there remains a discretion not to award costs even if the factors are present, to see if they point to the existence of "special circumstances" in the situation under consideration: Diaspora Holdings Pty Ltd v Owners SP 68608 [2019] NSWCATAP 250 at [17]. (8) Relevant to the exercise of that discretion are those facts upon which the finding of "special circumstances" was based. However, those findings do not constitute the whole of the relevant matters to be considered in deciding what, if any, order for costs should be made. Rather, the principles applicable to awarding costs generally must also be taken into account: Brodyn Pty Ltd v Owners Corporation Strata Plan 73019 (No 2) [2016] NSWCATAP 224 at [24]."
The Senior Member went on to correctly apply those principles in finding that the Appellant failed to establish the necessary urgency grounds justifying the making of an interim order as required by s 231 of the SMAA and also as required by the order of the Tribunal on 31 August 2021.
There is no error.

The failure to take into account the mandatory consideration referring to s 38(2) of the NCAT Act, requiring Tribunal to follow the rules of natural justice

We are not satisfied that s 60 of the NCAT on its proper construction imposed any mandatory consideration in the exercise of the discretion whether or not to make an order for costs. There was no error of law. We have already determined at [57] above that the Tribunal did not breach s 38(2) of the NCAT Act.

The Decision is so unreasonable no decision maker would make it

The Appellant contends the Tribunal was in error in the sense that the Decision was so unreasonable that no reasonable decision maker would make it.
The Appellant has misconceived this question of law in the context of a discretionary decision on costs. As explained in AHNA at [9]-[10], it is necessary that the reasons do not disclose why the impugned orders were made for this ground to exist. The Appellant did not address why there was a failure by the Tribunal to disclose why the order for costs was made. On the contrary, the Tribunal in the Decision at [67]-[69] (as set out in [11] above) provided detailed reasons for its decision on costs. This ground fails.
We find the Appellant has failed to establish an error of law. He requires leave to appeal.

Should the Appeal Panel grant leave to appeal?

The Appellant contends that he suffered a substantial miscarriage of justice because order (2) was not fair and equitable, it was against the weight of evidence. Put simply, the Appellant has not demonstrated either.
The Appellant contends that the reasons given from [67] onwards are insufficient to find 'special circumstances' exits to enable the exercise of a discretion to make a costs order under s 60(2) of the NCAT Act. The Appellant seeks to re-argue the Decision, which is not allowed, rather than arguing the finding concerning urgency. We have already found at [64] above that the Appellant's failure to establish "urgency" that was required to support an interim order was a relevant matter within s 60(3)(g) of the NCAT Act and accordingly was entitled to find that there were special circumstances within s 60(2) of the NCAT Act.
We find that Appellant has not established that the Decision was based on inaccurate facts. As we have identified at [62]-[63] above, the Senior Member properly took into account the evidence which established a lack of urgency in bringing the interim application.
The Senior Member was entitled to rely on the findings of Senior Member Meadows of there being "no evidence" of urgency.
We reject the Appellants contention that his circumstances, namely, he had no access to the internet and that he was not legally represented are matters material to the Decision.
In paragraph [43] of the Decision, there is no doubt the Tribunal identified and turned its mind to s 60(1) of eth NCAT Act. We reject the Appellant's submissions that no account was properly taken for the presumption that each party bear its own costs.
A challenge to the finding by Senior Meadows that the DA approval would take "some months" was made on no evidence at all is not a matter open to the Appellant in this appeal. To the extent that the Tribunal relied on that finding, there is no substantial miscarriage of justice.
We find there is no perceived imbalance between the parties in respect of the findings at [68] of the Decision.
We find that the Tribunal was entitled to find that urgency is "any other relevant matter" as specified in s 60(3)(g) of the NCAT Act. The Tribunal went on to find there was a lack of urgency in the Appellant bringing the interim application as required by s 231 of the SMAA and also by the direction of the Tribunal on 31 August 2021.
The Senior Member having found special circumstances was entitled to exercise the discretion to make a costs order.
Leave to appeal is refused.

Costs of the appeal

The Respondents make an application for the Appellant to pay their costs of the appeal. We find there are no special circumstances which would warrant the making of an order pursuant to s 60 of the NCAT Act. The usual position that each party bear its own costs should apply.

Orders

We make the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. A hearing to determine the costs of the appeal is dispensed with. 4. Subject to the outcome of any costs application pursuant to order (5) below, each party is to bear its own cost of the appeal. 5. If any party wishes to make an application to vary orders (3) and (4) above, the applicant (the costs applicant) must file and serve a costs application, including submissions limited to five pages and any evidence in support, within 14 days of the date of the orders in these reasons for decision. 6. Any respondent to the costs application is to file and serve any submissions limited to five pages and any evidence in reply within 14 days thereafter. 7. The costs applicant is to file any submissions limited to three pages in reply within 14 days after receipt of the submissions and any evidence of the respondent to the costs application.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 October 2022

Tribunal Act 2013(NSW)

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