CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21
eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94
Nguyen & Anor v Perpetual Trustee Company Ltd
Source
Original judgment source is linked above.
Catchwords
CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94Nguyen & Anor v Perpetual Trustee Company Ltd
Judgment (8 paragraphs)
[1]
Reasons for Decision
On 27 March 2018 the NSW Civil and Administrative Tribunal dismissed an application by the Appellant, Ms Sophia McGinn, because it was not satisfied that Ms McGinn had established the grounds for the orders sought. Ms McGinn appealed from that decision on a number of grounds.
On 26 April 2019 the Appeal Panel published reasons dismissing Ms McGinn's appeal and refusing leave to appeal.
On the same day the Appeal Panel made the following directions concerning the determination of any application for costs:
1. If the Respondents wish to seek an order for costs of this appeal in their favour, they are to file and serve a short outline of submissions as to why the Appeal Panel should make such an order and as to whether the question of costs should be determined on the papers within 14 days;
2. If the Appellant opposes any costs order being made, the Appellant is to file and serve a short outline of submissions as to why such an order should not be made and dealing with whether the issue of costs should be determined by the Appeal Panel on the papers 14 days after receipt of the Respondents' submissions on costs; and
3. The Respondents are to file and serve any reply submissions on costs within 14 days after service of the Appellant's submissions.
The Respondents have made an application for costs and filed submissions dated 10 May 2019 in which they consent to the cost's application being determined on the papers. The Respondents seek an order that the Appellant pays their costs of the appeal on an ordinary basis in the amount of $16,912.74, or as agreed or assessed.
The Appellant has filed submissions in response to the Respondents' submissions. In her submissions, the Appellant opposes the application for costs.
Submissions in reply by the Respondents were due under the above timetable by 7 June 2019. No submissions in reply have been received at the time of publication of these reasons.
By reason of the unavailability of the Appeal Panel to determine the costs application, the appeal panel was reconstituted by an Instrument dated on or about 26th November 2019 and this decision concerning costs of the appeal is the decision of S Westgarth, Deputy President ( being the Appeal Panel as reconstituted)
[2]
Dispensing with a hearing
The direction made by the Appeal Panel specifically asked the parties to deal with the question of whether the matter should be determined on the papers. The Respondents have consented. However, the Appellant's submissions did not canvas the issue.
The Appellant has not sought a hearing nor provided any reason why a hearing should be held. She has made no objection to the matter being dealt with on the papers.
In the absence of any objection by the Appellant, and where each party has provided written submissions, the Appeal Panel (as reconstituted ) has decided that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions, and the reasons for decision dated 26 April 2019 .
Pursuant to s. 50(2) of the Civil and Administrative Tribunal Act, 2013 (the NCAT Act), the appeal panel ( as reconstituted ) dispenses with a hearing in relation to the Respondent's application for costs.
[3]
Decision under Appeal
The appeal was from proceedings heard in the Consumer and Commercial Division of the Tribunal. Ms McGinn is a lot owner in a strata scheme. The Respondents in the Tribunal and to the appeal were Mr Shoebridge who is ( or was at the relevant time) the chairperson appointed by the strata scheme committee, and Mr Campbell who is ( or was at the relevant time) the appointed secretary (together "the Respondents"). Mr Armstrong is ( or was at the relevant time) the strata managing agent for the strata scheme but was not a named party.
Ms McGinn nominated herself for election to the Committee at the Annual General Meeting (AGM), but her bid for election was unsuccessful. Ms McGinn's main complaints relate, but were not limited to, the conduct of the AGM.
Ms McGinn alleged that:
1. a secret ballot took place at the AGM to elect the Committee, without the approval required under s 29 of the Strata Schemes Management Act, 2015 (SSMA);
2. Mr Armstrong added "extra proxies" with Mr Campbell's knowledge following the AGM to retrospectively mask that less than a quarter of the persons entitled to vote at the AGM were present either personally or by duly appointed proxies at the AGM, and therefore there was no quorum at the AGM;
3. Mr Shoebridge failed to have a "revote" knowing that extra proxies had been added after the AGM;
4. Mr Shoebridge had allowed a tempering valve (a mixing valve which mixes hot water with cold water to control the temperature of the hot water supply) to be fitted to the building's water supply system without a special resolution of the Owners Corporation; and
5. there had been a misappropriation of funds that Mr Shoebridge had failed to investigate.
In the Tribunal, Ms McGinn sought orders:
1. Under s. 238 of the SSMA for the Respondents to be removed as Members of the Committee; and
2. Under s. 237 of the SSMA to appoint a compulsory agent to the strata scheme to exercise all functions of the Owners Corporation.
As against Mr Armstrong, Ms McGinn applied for an order under s. 60 of the NCAT Act to award costs against Mr Armstrong, as a non-party as she alleged, he played an active part in Mr Shoebridge's and Mr Campbell's misconduct.
Ms McGinn was unsuccessful in the Tribunal. She did not obtain the orders she sought.
Ms McGinn argued six (6) grounds of appeal alleging legal error. The Appeal Panel did not find any error of law. She also sought leave to appeal on the basis that the decision was against the weight of the evidence. The Appeal Panel refused leave to appeal.
[4]
Power to award costs
Section 60 of the NCAT Act creates the general rule that each party to proceedings is to pay their own costs: s 60(1). An Appeal Panel may only order costs "if satisfied that there are special circumstances warranting an award of costs (emphasis added)": s 60(2). Section 60(3) sets out a non-exhaustive list of factors that may be taken into account in deciding whether there are special circumstances warranting an award of costs:
(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.
The term "special circumstances" is not defined by the NCAT Act. It has been interpreted to mean circumstances that are out of the ordinary but not necessarily extraordinary or exceptional. The discretion to award costs must be exercised judicially having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. (See eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [23]-[31]; Nguyen & Anor v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen & Anor (no 2) [2016] NSWCATAP 168 at [16])
[5]
Submissions in respect of costs
The Respondents contend that an order for costs is warranted and special circumstances exist.
First, the Respondents submit the failure of the Appellant in the appeal establishes that the appeal had no prospects of success. They say the appeal essentially sought to re-argue the decision in the primary proceedings.
Secondly, the grounds of appeal were misplaced and without foundation.
Thus, it is submitted that special circumstances exist as the appeal was out of the ordinary, as it lacked any identifiable error of law or any basis on which leave could be granted. It is also submitted the appeal was out of the ordinary because it lacked substance.
The Respondents accept that dismissal of the appeal alone does not establish an entitlement to costs. The distinction agitated by the Respondents is that the appeal did not advance any basis on which the appeal could succeed. They submit the Appellant unnecessarily prolonged the proceedings, that the appeal was so weak that there was no tenable basis in fact or law, that the appeal lacked substance and was accordingly vexatious.
Ms McGinn's submissions argue that nothing out of the ordinary was disclosed in the decision of the appeal panel and no costs should be awarded.
[6]
Should a costs order be made?
The issue to be decided is whether the factors relied upon by the Respondents establish special circumstances warranting an award for costs .
The starting point is that the discretion to award costs must be exercised judicially having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs.
The gravamen of the Respondents' submission in support of their application for costs, is that the appeal lacked substance.
There is some merit in the Respondent's submission. The first, second, fourth, fifth and sixth grounds of appeal, in substance, concerned sufficiency of evidence, as did the application for leave to appeal.
However, the third ground concerned the nature of the vote taken at the AGM. In relation to the allegation of a secret ballot in contravention of the SSMA, the Tribunal had accepted that what occurred was a private poll in accordance with s. 14 of Sched. 1 of the SSMA. This was challenged on appeal and while the Appellant was ultimately unsuccessful, the issue raised did not, in our view, lack substance because the term "private poll" is not defined and required elucidation by the Appeal Panel to establish its proper meaning.
It is my opinion that the appeal, while weak unsuccessful, did not lack substance, and was not vexatious or misconceived. The hearing concluded within half a day and was not unreasonably prolonged by the Appellant. Accordingly I do not find that special circumstances exist in the context of this appeal. Further even if it could be said that one or more of the matters described in s60(3) exist in this appeal ,it is my view that they do not constitute special circumstances warranting an award of costs.
While it is true the Appellant was unsuccessful, that alone does is insufficient to create special circumstances. In ACT Builders v Haridemos (No 2) [2016] NSWCATAP 118 at [41] the appeal panel noted that the mere fact a party was unsuccessful in their appeal does not of itself give rise to special circumstances warranting an order for costs in favour of the other party. Rather, the onus is on the party seeking an order for costs to satisfy the appeal panel that there are special circumstances warranting an order for costs.
In the circumstances described above, I am not satisfied that there are special circumstances warranting an order for costs.
[7]
Orders
1. A hearing on the application for costs is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).
2. The Respondents' application for costs is dismissed
[8]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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: 30 December 2019