Nimmons v The Owners Strata Plan No 10441

Nimmons v The Owners Strata Plan No 10441 - [2024] NSWCATAP 157 - NSWCATAP 2024 case summary — Zoe

[5]

The history of the proceedings between the parties in the Consumer and Commercial Division of the Tribunal

On 8 December 2023, Ms Nimmons as the applicant commenced proceedings 2023/00454812 in the Consumer and Commercial Division of the Tribunal against OSP10441 as the respondent by lodging a strata and community schemes application in which she claimed the following relief (the Nimmons application): "STRATA SCHEMES MANAGEMENT ACT 2015 - SECT 106: (1) (2) and (5) Duty of owners corporation to maintain and repair property. Under Section 232 of Orders under the Strata Schemes Management Act 2015, I request an order to resolve the dispute and settle the complaint, ask for orders to be made In terms of: 1) Completing the building Works listed on the contract to an acceptable level 2) Commencing and completing the items within the contract that have not yet started. 3) I seek damages for contravention of duty to maintain common property and keep in a state of good and serviceable repair. The damages are inclusive of accommodation costs totalling $4000 per fortnight from the data of the commencement on 6 November 2023 to the completion of all works. 4) I request that any costs incurred to me by my insurer be reimbursed. 5) I ask for the cost of the building consultant to be reimbursed 6) If legal fees accrue, to be reimbursed for them 7) I also ask for a consideration to be made if, in the event I am successful in the Tribunal, any costs incurred by my owner's corporation exempt Unit 13 from the resulting levies."
On 17 April 2024, the hearing took place.
On 26 April 2024, the Senior Member published his decision (the 26 April 2024 decision) in which he made the following orders (the 26 April 2024 orders), and set out his reasons (the 26 April 2024 reasons): "1 The Respondent is to arrange to have carried out, in a proper and workmanlike manner, by licensed and insured tradespersons, the Scope of Works set out in Appendix A, with that work to be completed within two months of the date of these orders. 2 The Respondent is to pay the Applicant $500.00 within 14 days. 3 No order as to costs, with the intent that each party is to bear their own costs of this application. 4 The Tribunal notes that s 104 of the Strata Schemes Management Act 2015 (NSW) applies since the Applicant is a party who has been successful in these proceedings."

[6]

The 26 April 2024 reasons

In the 26 April 2024 reasons, the Senior Member: 1. outlined the claims of Ms Nimmons in the Nimmons application and the 26 April 2024 orders ([1]); 2. found that the Tribunal had jurisdiction to hear and determine the Nimmons application ([2]); 3. summarised the procedural history of the proceedings ([3]-[6]); 4. summarised the course of the hearing including the admission of the documents on which Ms Nimmons relied into evidence (marked as exhibit A), and the review of 22 pages of Ms Nimmons' bank statements (marked as MFI4) and summary page (marked as MFI5) ([7]-[18]); 5. set out the terms of, and the legal principles applicable to, s 106 of the SSM Act ([19]-[21]); 6. set out the nature of the documents comprising 442 pages relied on by Ms Nimmons ([22]): "The applicant's documents contained (1) a six-page statement of the applicant (A3), (2) a 27-page chronology (A10), (3) 264 pages of emails, photos, and other documents (A37), (4) copies of receipts (A301), (5) a copy of the contract with the builder who carried out work (A326), and (6) Mr Hadid's 113-page report (A330)." 1. summarised the submissions of Ms Nimmons in respect of her claim for the breach of s 106 of the SSM Act ([23]); 2. summarised the submissions of OSP10441 in respect of the claim of Ms Nimmons for the breach of s 106 of the SSM Act ([24]); 3. accepted the evidence of Ms Nimmons' expert witness Mr Hadid in his report (the Hadid report), and found that OSP10441 had breached s 106 of the SSM Act and that a work order should be made ([25]-[38]); 4. dealt with Ms Nimmons' claim for damages in the following manner ([39]-[43]): 1. he noted that she claimed a total of $24,855.00 comprising [39]: 1. $20,000.00 for temporary rental accommodation calculated at the rate of $4,000 per fortnight from 6 November 2023 to 29 January 2024; 2. $3,850.00 for the cost of the Hadid report; 3. $500 for an insurance excess paid to NRMA; 4. $504.23 for photocopying/stationery costs; 1. made the following findings in relation to her claim for temporary rental accommodation [40]: "The first of those claims was revealed by the applicant's bank statements to be amounts of $4,000 paid to her father which amounts were each matched by payments of the same amount to her. As the net result is no outlay by the applicant, she has suffered no loss. Simply stated, when she could not live in her unit, she lived with her father." 1. found that the claim for the cost of the Hadid report and photocopying/stationery costs were components of the costs of the proceedings which had been incurred by her but were not recoverable as damages [41]; 2. noted the concession of OSP10441 that it was liable for insurance excess and found that she was entitled to a money order for $500.00 [42]-[43]; 1. set out the terms of and the legal principles applicable to s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) ([44]-[48]); 2. found that Ms Nimmons was not entitled to an order for costs ([49]): "Having heard and considered the submissions made by the applicant and for the respondent, the Tribunal is not persuaded that there are special circumstances in this case. Even if there could be said to be special circumstances, this was a straightforward case, based on s 106 of the SSMA, which does not warrant making an order for costs." 1. noted that s 104 of the SSM Act operates to prevent OSP10441 from obtaining any amount from Ms Nimmons in respect of its costs of the proceedings ([50]): "However, it must be noted that the applicant is a successful party. As a result, s 104 of the SSMA operates to prevent the respondent from obtaining any amount from the applicant in respect of its costs of these proceedings. In The Owners Strata Plan No 80412 v Vickery (No 2) [2019] NSWCATAP 97, at [25]-[27], it was said that s 104 imposes a prohibition that operates regardless of whether an order is made with the result that it is not necessary to make any order. However, from an abundance of caution, the orders should include a note so that the operation of s 104 is not overlooked." 1. set out the 26 April 2024 orders ([51]).

[9]

The scope and nature of internal appeals

Internal appeals against an internally appealable decision may be made in the case of any kind of decision other than an interlocutory decision (including an ancillary decision) as of right on a question of law, or with the leave of the Appeal Panel, on any other grounds: s 80(1) and (2)(b) of the NCAT Act.
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are where it is satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision of the Tribunal under appeal was not fair and equitable, or the decision of the Tribunal under appeal was against the weight of evidence, or significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with): cl 12(1)(a), (b) and (c) of Sch 4 of the NCAT Act.
In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 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.
The test of whether evidence is reasonably available for the purpose of cl 12(1)(c) of Sch 4 of the NCAT Act is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23].
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] set out the general principles which govern the granting of leave to appeal. These general principles were recently summarised by the New South Wales Court of Appeal in Maclean v Brylweski [2023] NSWCA 173 (Maclean) at [24] (Ward P and Simpson AJA): "[24] It is not disputed that leave to appeal is necessary. In determining whether leave to appeal should be granted, something more must be demonstrated than that the primary judge's decision was arguably wrong. What is ordinarily required to be demonstrated is that the matter involves a question of principle or of public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable. Moreover, where, as here, the decision the subject of the application for leave to appeal involves an exercise of discretion, what is required to be demonstrated is error in the House v The King sense." (citations omitted)
The Appeal Panel has determined that, except when it conducts a new hearing under s 80(3), an appeal under s 80(1) of the NCAT Act involves a rehearing in the sense of conducting a rehearing on the materials before the Tribunal to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error and, in some cases, has power to receive additional evidence. Although the appeal is described as being "by way of rehearing", it does not call for a fresh hearing and the Appeal Panel does not hear the witnesses again": Yuen v Thom [2016] NSWCATAP 243 at [14]-[22].
An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances specified in s 80(2)(b) of the NCAT Act: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
The Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including but not limited to for the appeal to be allowed or dismissed, and for the decision under appeal to be set aside and for another decision to be substituted for it: s 81(1)(a) and (c) of the NCAT Act. The Appeal Panel may exercise all the functions that are conferred or imposed by the NCAT Act or other legislation on the Tribunal at first instance when making a decision in substitution for the decision under appeal: s 81(2) of the NCAT Act.
In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos) at [13], the Appeal Panel 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 to facilitate the just, quick and cheap resolution of the real issues in the appeal in s 36(1) of the NCAT Act, 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.

[10]

The preliminary matters

We are satisfied that the notice of appeal was lodged within the time of 28 days prescribed under r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules).
Ms Nimmons makes the following complaints about the 26 April 2024 decision in the 10 July 2024 Nimmons statement: 1. as to the finding in relation to her claim for temporary rental accommodation that she suffered no loss, the Senior Member misunderstood the evidence and she has significant new evidence; 2. the Senior Member did not determine her claim to be exempt from any levies of OSP10441 associated with the work order, the money order and the costs of the proceedings; 3. as the order that there should be no order as to the costs of the proceedings, the Senior Member should have found that there were special circumstances warranting an award of costs within her favour within s 60(3)(a), (b), (c), (f) and (g) of the NCAT Act.
Ms Nimmons makes the following complaints about the 26 April 2024 decision in the Nimmons appeal submissions in reply: 1. the Senior Member failed to provide an adequate explanation into the reasoning process for his finding that she suffered no loss in relation to her claim for temporary rental accommodation; 2. there was no evidence that she suffered no loss in relation to her claim for temporary rental accommodation; 3. the Senior Member failed to provide adequate reasons for the 26 April 2024 decision so far as the order for costs; 4. the Senior Member made an error in finding in relation to her claim for an order for costs of the proceedings that she needed to establish special circumstances because her total claim amounted to more than $30,000.00.
Having regard to the principles in Cominos at [13], we have given consideration to the 26 April 2024 reasons, the notice of appeal, the Nimmons appeal documents, the 4 July 2024 agreement and the Nimmons appeal submissions in reply as to whether it is possible to discern grounds that raise a question of law or a basis for leave to appeal.
We have also had regard to the following legal principles: 1. the term 'constructive failure to exercise jurisdiction' is used to describe a situation where the court has purported to resolve the parties' dispute but has not in fact done so. Thus, particularly with a court or tribunal required to provide reasons for its decision, it may become apparent from those reasons that a material issue has simply not been addressed or that material evidence has been overlooked: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [9] (Basten JA with Beazley P at [1] agreeing). If there has been a constructive failure to exercise jurisdiction there will have been error of law which can be addressed on an appeal limited to a question of law: Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [22] (Basten JA); see also Fisher v Nonconformist Pty Ltd [2024] NSWCA 32 at [39] (Kirk JA with Meagher JA at [1] and Simpson AJA at [149] agreeing). This principle has been applied by the Appeal Panel: see, for example, Steelbond Australia Pty Ltd v Wein [2024] NSWCATAP 20 at [59]-[60]; 2. whether there was no evidence to support a factual finding is a question of law, not a question of fact: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 (Kostas) at [91] (Hayne, Heydon, Crennan and Kiefel JJ); 3. an appeal on the ground of the failure to provide adequate reasons where there was no request for reasons raises a question of law: Meacham v Commissioner of Police [2020] NSWCATAP 107 (Meacham) at [30(1)].
We have discerned that the following questions of law are raised by Ms Nimmons in this appeal: 1. whether the Senior Member constructively failed to exercise the jurisdiction of the Tribunal by not addressing the question of whether a quarantine order should be made in respect of levies for the costs of OSP10441 to comply with the work order and the money order, and for its costs of the proceedings at first instance; 2. whether there was no evidence to support the finding of the Senior Member that Ms Nimmons suffered no loss in relation to her claim for temporary rental accommodation; 3. whether the Senior Member failed to provide adequate reasons for his finding that Ms Nimmons suffered no loss in relation to her claim for temporary rental accommodation; 4. whether the Senior Member failed to provide adequate reasons for his finding that there were no special circumstances warranting an award of costs in favour of Ms Nimmons and if there were special circumstances the nature of the case did not warrant an order for costs.
We have discerned that the following bases for leave to appeal are raised by Ms Nimmons in this appeal: 1. whether the 26 April 2024 decision so far as the finding in relation to her claim for temporary rental accommodation that she suffered no loss was against the weight of evidence; 2. whether significant new evidence as to her claim for temporary rental accommodation that was not reasonably available at the time of the hearing has arisen; 3. whether the 26 April 2024 decision so far as the order that there should be no order as to the costs of the proceedings was not fair and equitable because the Senior Member: 1. should have found that r 38(2)(b) of the NCAT Rules was applicable and made an award of costs in her favour; 2. should have found that there were special circumstances warranting an award of costs within her favour within s 60(3)(a), (b), (c), (f) and (g) of the NCAT Act and exercised the discretion under s 60(2) of the NCAT Act to make an award of costs in her favour.

[11]

Whether the Tribunal constructively failed to exercise its jurisdiction by not addressing the question of whether a quarantine order should be made in respect of levies for the costs of OSP10441 to comply with the work order and the money order, and for its costs of the proceedings at first instance

In response to our invitation to address this issue, counsel for OSP10441 submitted that the claim for a quarantine order in the Nimmons application was limited to the costs of the proceedings and there was no need to make a quarantine order by reason of the operation of s 104 of the SSM Act. Alternatively, he submitted that if the claim for a quarantine order in the Nimmons application was not limited to the costs of the proceedings, then there was no power to make an order under s 232(1) of the SSM Act as there was no complaint or dispute requiring settlement.
We are satisfied that Ms Nimmons in the Nimmons application claimed an exemption from levies for the costs of OSP10441 to comply with the work order and the money order, and for its costs of the proceedings at first instance. As Ms Nimmons advised during the hearing that she was not a lawyer or legally qualified, we have not approached the Nimmons application with the expectation of precision in language that we might have had were it prepared by a lawyer. In any event, we do not accept that the expression "any costs incurred by my owner's corporation" in para 7 of the relief claimed in the Nimmons application should be limited to the costs of the proceedings. Rather it should be understood as encompassing any monies payable by OSP10441 to comply with the 26 April 2024 orders. In this regard, we note that Ms Nimmons has used the word "cost" or "costs" in paras 3, 4 and 5 of the relief claimed in the Nimmons application in relation to damages for temporary rental accommodation, reimbursement of the monies paid as the insurance excess and for the Hadid report. Further, we are satisfied that there was a complaint or dispute about the quarantine order requiring settlement as expressly stated in the section setting out the relief claimed in the Nimmons application.
We are also satisfied that the Tribunal in the notation in para 4 of the 26 April 2024 orders only considered the operation of s 104 of the SSM Act in relation to the costs of the proceedings.
In The Owners - Strata Plan No. 80412 v Vickery (No 2) [2019] NSWCATAP 97 at [25]-[27], the Appeal Panel held that the Tribunal did not have power to make a quarantine order under s 104 of the SSM Act.
In The Owners Strata Plan No 74698 v Jacinta Investments Pty Ltd [2021] NSWCATAP 387 (Jacinta Investments) at [159]-[208], the Appeal Panel considered the question of whether the Tribunal has power to make an order in respect of the proportions in which an owners corporation might levy lot owners in connection with an award for money made against it in favour of a lot owner in proceedings in the Tribunal and in respect of any cost orders made in relation to such proceedings. The Appeal Panel held at [176] that s 104 of the SSM Act does not confer an order making power on the Tribunal, and at [181] that s 232(1) of the SSM Act permits the Tribunal to make a quarantining order, both in respect of levies for the purpose of paying an award for damages and an award of costs payable by an owners corporation to a successful lot owner.
The source of the power in 232(1) of the SSM Act for the Tribunal to make a quarantine order has been followed by the Appeal Panel: The Owners - Strata Plan No 62713 v Liberant [2022] NSWCATAP 80 (Liberant) at [115]; The Owners - Strata Plan No 38308 v Gelder [2024] NSWCATAP 61 (Gelder) at [116]-[126].
Having regard to the 26 April 2024 reasons at [27]-[29], the work order on its proper construction related to consequential damage to Ms Nimmons' lot by reason of water ingress.
Having regard to the principles in Jacinta Investments at [159]-[208], Liberant at [115] and Gelder at [116]-[126], we are satisfied that the Tribunal had power to make a quarantine order under s 232(1) of the SSM Act with respect to its costs of complying with the work order, the damages payable to Ms Nimmons and OSP10441's costs of the proceedings.
We have decided that we should pursuant to s 81(1)(a) and (c) and (2) of the NCAT Act allow the appeal on this ground of appeal, set aside the notation in para 4 of the 26 April 2024 orders and exercise the powers of the Tribunal at first instance by making a quarantine order in respect of levies for the costs of OSP10441 to comply with the work order and the money order, and for its costs of the proceedings at first instance.

[13]

Whether the Senior Member failed to provide adequate reasons for his finding that Ms Nimmons suffered no loss in relation to her claim for temporary rental accommodation

In Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940 (Nu-Stone Building) at [63], Wright J set out some general principles concerning the adequacy of reasons for decisions: "[63] Other relevant, more general principles concerning the adequacy of reasons for decisions include: (1) One of the functions of reasons for decisions is to explain to the losing party why that party lost; (2) Reasons should be read fairly and as a whole to determine whether they are adequate; and (3) It is open to a decision maker to accept and incorporate by reference one party's submissions, as long as it is clear what is being accepted; and, where the decision maker is adjudicating between cases put by the parties, it is necessary that it be explained why the losing party's case was rejected."
In Coscuez International Pty Ltd v The Owners-Strata Plan No 46433 [2022] NSWCATAP 147 (Coscuez International) at [87], the Appeal Panel explained the principles applicable to adequacy of reasons: "[87] The principles applicable to adequacy of reasons were dealt with by the NSW Court of Appeal in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [65]-[77]. The quality (or detail) of reasons does not have to be optimal, but it must meet the minimum acceptable standard or "minimum characteristics" to be able to understand: (1) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (2) the Tribunal's understanding of the applicable law, and (3) the reasoning processes that lead the Tribunal to the conclusions it made."
The fact that the Tribunal makes an error does not necessarily mean that the decision should be set aside, unless the error is material in the sense that it "might" or "may" have made a difference to the decision: Meacham at [29].
Having regard to the principles at Nu-Stone Building at [63] and Coscuez International at [87], we do not accept the submissions of Ms Nimmons that the Senior Member failed to provide adequate reasons for his finding that she suffered no loss in relation to her claim for temporary rental accommodation. In finding in the 26 April 2024 reasons at [40] that her bank statements recorded that her payments of $4,000.00 paid to her father were matched by payments of the same amount by him to her, the Senior Member explained his reasoning processes that led to this finding and why her case was rejected.
For these reasons, we are satisfied that the Senior Member did not make an error of law in finding that Ms Nimmons suffered no loss in relation to her claim for temporary rental accommodation. It follows that the appeal should be dismissed pursuant to s 81(1)(a) of the NCAT Act so far as this ground of appeal.

[14]

Whether the Senior Member failed to provide adequate reasons for his finding that there were no special circumstances warranting an award of costs in favour of Ms Nimmons and if there were special circumstances the nature of the case did not warrant an order for costs

In response to our invitation to address this issue, counsel for OSP10441 submitted that the submissions of Ms Nimmons were set out in the 17 April 2024 transcript extract (in which the acronyms SME and KN refer to Senior Member Ellis and Kristen Nimmons respectively): "SME: The government set up this tribunal with the intention that people could come along and bring their claims, they'd be heard quickly and cheaply, and to that end it said we're not going to allow people to claim or recover costs unless there are special circumstances that warrant an order for costs. So the starting point in this tribunal, unlike a court, is that each side pays their own costs, unless there are special circumstances that warrant an order for costs. So, what do you say are the special circumstances here? KN: That's me? SME: Yes. KN: I've was of the understanding of the order, last time, was that I provided builder report, but I'm not sure if that is anything I need to say."
Having regard to the principles at Nu-Stone Building at [63] and Coscuez International at [87]: 1. we accept the submissions of Ms Nimmons that the Senior Member failed to provide adequate reasons for his finding that there were no special circumstances warranting an award of costs in her favour. The Senior Member in the 26 April 2024 reasons at [49] referred to the submissions made by Ms Nimmons and OSP10441, but did not explain his reasoning processes that led to this finding and why her case was rejected; 2. we do not accept the submissions of Ms Nimmons that the Senior Member failed to provide adequate reasons for his finding that if there were special circumstances the nature of the case did not warrant an order for costs. In finding in the 26 April 2024 reasons at [49] that her case was straightforward based on s 106 of the SSM Act, which does not warrant making an order for costs, the Senior Member explained his reasoning processes that led to this finding and why her case was rejected.
While we are satisfied that that the Senior Member made an error of law in failing to provide adequate reasons for his finding that there were no special circumstances warranting an award of costs in favour of Ms Nimmons, for the reasons set out below we are not satisfied that this error was material in the sense that it "might" or "may" have made a difference to the decision not to award costs in her favour. It follows that we have decided not to set aside order 3 of the 26 April 2024 orders on account of this error of law and the appeal should be dismissed pursuant to s 81(1)(a) of the NCAT Act so far as this ground of appeal.

[20]

Whether costs should have been awarded in favour of Ms Nimmons under r 38(2)(b) of the NCAT Rules

Part 9 (rr 37-40) of the NCAT Rules deals with the determination of proceedings. Rule 38 deals with costs in the Consumer and Commercial Division of the Tribunal, 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.
In The Owners Corporation Strata Plan No. 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256 (Malachite Holdings) at [3]-[5] the Appeal Panel summarised the circumstances in which r 38(2) of the NCAT Rules applies: "[3] Rule 38(2)(b) applies to the following proceedings: (1) Where the relief claimed in the proceedings is for an order to pay a specific amount of money, or an order to be relieved from an obligation to pay a specific amount of money, and that amount is more than $30,000; (2) Where an order is sought in the proceedings for the performance of an obligation (such as to do work), and the Tribunal has power make an order to pay a specific amount of money, even if not asked for by the claimant, provided that (a) there is credible evidence relating to the amount the Tribunal could award; and (b) that evidence, if accepted, would establish an entitlement to an order for an amount more than $30,000. [4] Rule 38(2)(b) may also apply to proceedings where the orders sought in the proceedings depend upon the claimant proving there is a debt owed in order to establish an entitlement to the relief sought, and that amount is in dispute and is more than $30,000. [5] Rule 38(2)(b) does not apply to proceedings: (1) Where a claim for relief in the proceedings (not being a claim for an order to be paid or be relieved from paying a specific sum) may, as a consequence of that relief being granted, result in the loss of any property or other civil right to a value of more than $30,000; or (2) Where there is a matter at issue amounting to or of a value of more than $30,000 but: (a) no direct relief is sought and no order could be made in the proceedings requiring payment or relief from payment of an amount more than $30,000; or (b) the relief sought does not depend on there being a finding that a specific amount of money is owed."
Having regard to the principles in Malachite Holdings at [3]-[5], we are not satisfied that r 38(2)(b) of the NCAT Rules was applicable to the proceedings because as recorded in the 26 April 2024 reasons at [39] Ms Nimmons claimed a total of $24,855.00 by way of damages.
It follows that we are not satisfied that Ms Nimmons may have suffered a substantial miscarriage of justice because the 26 April 2024 decision with respect to the costs of the proceedings was not fair and equitable within cl 12(1)(a) of Sch 4 of the NCAT Act because r 38(2)(b) of the NCAT Rules was applicable to the proceedings. Therefore, we refuse leave to appeal on this ground.

[21]

Whether costs should have been awarded in favour of Ms Nimmons under s 60(2) of the NCAT Act

It is an established principle that a party is bound by the conduct of his case. Other than in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so: Coulton v Holcombe (1986) 162 CLR 1 at 8; [1986] HCA 33 (Coulton) (Gibbs CJ, Wilson, Brennan and Dawson JJ). This principle has been applied by the Appeal Panel on many occasions: see, for example, Naish aka Khosroabadi v NSW Land and Housing Corporation [2023] NSWCATAP 99 at [21].
We are satisfied from the 17 April 2024 transcript extract that Ms Nimmons is raising new arguments as to the existence of special circumstances within s 60(3)(a), (b), (c), (f) and (g) of the NCAT Act that were not raised before the Senior Member contrary to the principles in Coulton at 8.
Even if we permitted Ms Nimmons to raise new arguments as to the existence of special circumstances within s 60(3)(a), (b), (c), (f) and (g) of the NCAT Act and found that special circumstances existed within s 60(2) of the NCAT Act, any such finding would be immaterial because the Senior Member decided that, even if special circumstances existed, in the exercise of the discretion under s 60(2) of the NCAT Act he would not make an order for costs in her favour.
It is an established principle that the reasoning in House v The King (1936) 55 CLR 499 (House v R) at 504-505; [1936] HCA 40 applies to judicial decisions involving an exercise of discretion: GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 at [16] (Kiefel CJ, Gageler and Jagot JJ).
In House v R at 504-505 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."
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: Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 (AHNA) at [13], [18]-[19] (Bathurst CJ and Leeming JA). This principle has been applied by the Appeal Panel: see, for example, Crystele Designer Homes Pty Ltd v Wood [2023] NSWCATAP 242 at [84].
Having regard to the principles in House v R at 504-505 and AHNA at [13], [18]-[19], we are not satisfied that the Senior Member made an error in the exercise of the discretion under s 60(2) of the NCAT Act not to award costs in favour of Ms Nimmons.
It follows that we are not satisfied that Ms Nimmons may have suffered a substantial miscarriage of justice because the 26 April 2024 decision with respect to the costs of the proceedings was not fair and equitable within cl 12(1)(a) of Sch 4 of the NCAT Act because of an error in the exercise of the discretion under s 60(2) of the NCAT Act. This means that the error of law made by the Senior Member in failing to provide adequate reasons for his finding that there were no special circumstances warranting an award of costs in favour of Ms Nimmons was immaterial to his decision to not make an order for costs in her favour. Therefore, we refuse leave to appeal on this ground.

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