Noor v The Owners - Strata Plan No 72939 - [2023] NSWCATAP 275 - NSWCATAP 2023 case summary

NCAT Appeal Panel|2023-10-13|Before: Blake AM

Introduction

We note that neither party challenges our finding in Noor AP at [91] that r 38A(2) of the NCAT Rules is applicable to this appeal.
Before considering this issue, it is appropriate to summarise the evidence and submissions of the parties and set out the applicable legal principles.

The owners corporation's costs submissions

In the owners corporation's costs submissions, the owners corporation attached the orders and correspondence referred to at [7] to [13] above, and made the following submissions: 1. a limited cost order ought to be made for any one or more of the following reasons: 1. the owner is self-represented (through her husband) and is not entitled to her costs of the appeal (if any is sought); 2. the aspect of the claim upon which the owners corporation was successful was a significant issue and finally disposed of that aspect of the owner's claim; 3. the owner acted unreasonably during the course of the appeal proceedings and caused unnecessary costs to be incurred; 1. prime facie, the starting position that a successful party should be awarded its costs as compensation would result in the following outcome: 1. the owners corporation would be entitled to costs on the aspect of the appeal in which it was successful; 2. irrespective of outcome, the owner is not entitled to any time costs as she is a self-represented party; 3. accordingly, the two potential costs orders do not cancel each other out; 1. as to its success on a significant issue: 1. it referred to the principles in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 (Bostik (No 2)) at [38] and Short v Crawley (No 40) [2008] NSWSC 1302 (Short (No 40)) at [32]; 2. the loss of rent claim was the dominant claim both in respect to quantum and the amount of time taken to argue the point; 3. Ms Noor originally commenced proceedings seeking loss of rent of $14,171.00. Prior to the determination of the Tribunal below, she sought to increase that amount by a further $16,649.11 to the total sum of $30,820.11. Before the Appeal Panel, she lodged the 6 July 2023 Noor application again seeking the same increase. The total amount of the remaining four claims (as sought to be amended by her appellant) was $21,219.08. Accordingly, the loss of rent claim was the single largest claim she made; 4. the loss of rent claim (which included a limitations issue) is separable from the remaining issues in the appeal as: 1. the owner contended the loss of rent claim is separate from her other claims. The Appeal Panel has accepted this contention; 2. the loss of rent claim involved determination of a limitations issue as well as disputed factual matters about altered bank statements which do not relate to the other claims; 3. unlike the other claims which have been remitted for re-determination, the loss of rent claim has been finally determined (upholding of the original dismissal); 4. the great majority of the documents and submissions made to the Appeal Panel related to the loss of rent claim (including addressing issues involving the limitations period, altered bank statements, and the relevance of the Local Court proceedings); 1. as to the unreasonable actions of the owner during the course of the appeal proceedings causing unnecessary costs to be incurred: 1. the owner refused to comply with the Appeal Panel's direction to file and serve a physical appeal book (or indeed an appeal book in any sort of order). She was then argumentative when reminded by the Registrar of a requirement to serve hard copies of the appeal book. A further callover was necessary for orders to be made. Ultimately the owners corporation had to prepare the appeal book and should be compensated for having to fulfill the owner's responsibility; 2. the owner filed the 6 July 2023 Noor application and the 19 July 2023 Noor application in which she sought orders that were either misconceived and/or argumentative. Each of the applications was dismissed in part on 26 July 2023 and fully on 24 August 2023.

The owner's costs submissions

In the owner's costs submissions, the owner made the following submissions: 1. the costs application was files out of time and should be dismissed; 2. the owners corporation has continually filed and served documents out of time; 3. it would be unfair to have costs awarded against her; 4. the delay of the owners corporation in repairing the common property has resulted in the consequential losses which she claimed in proceedings SC 21/38944.

The owners corporation's costs submissions in reply

In the owners corporation's costs submissions in reply, the owners corporation attached correspondence serving the costs application on the owner by email on 7 September 2023 and by post on 8 September 2023, and made the following submissions: 1. the costs application was filed and served within the time specified in the procedural orders; 2. to the extent that it is found that the costs application was filed and served within the time specified in the procedural orders, it applies for an extension of time; 3. the remainder of the owner's costs submissions should be rejected as attempting to raise disputed factual matters for which there is no evidence, no finding was made in the Tribunal below or in Noor AP, and it is not open for the owner to seek such findings on appeal; 4. the owner's costs application should be rejected as there is no particulars or substantiation of the costs sought that would enable any assessment of what the amount comprises or whether the owner has genuinely incurred those costs that would warrant an award of costs. Otherwise, the owner makes no submissions on why she is entitled to an award of costs.

The owner's further costs submissions

In the owner's further costs submissions, the owner states that she objects to the entirety of the owner's costs submissions.

The applicable legal principles

In Jamal v Secretary, Department of Health (1988) 14 NSWLR 252 at 271 Mahoney JA held: "Although costs lie in the discretion of the Court: Supreme Court Rules 1970, Pt 52, r 11; the ordinary rule is that the general costs of an appeal, like the general costs of the trial, follow the event: …. But the general rule is, of course, subject to exceptions. Those exceptions are, inter alia, of two general kinds. First, if the costs of the appeal have been increased by an issue on which the successful parties failed and those costs are of sufficient significance to warrant a special order, the party who succeeded on that issue should have the costs of it, to be set off against the general costs of the appeal: …. And, secondly, there may be reasons why the general costs of the appeal or the costs of particular issues will be ordered otherwise. …"
In Short (No 40)) at [32] White J held: "[32] A costs order in favour of a successful party can be modified to reflect its failure on particular issues even if the successful party did not act unreasonably in raising those issues (Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (Supreme Court of New South Wales, Hodgson CJ in Eq, 3 June 1998, unreported, BC9802305 at 10-11)."
In Lollis v Loulatzis & Anor (No 2) [2008] VSC 35 at [29] Kaye J held: "[29] … As the consequential burden of costs to all parties is increasing exponentially, it behoves trial judges to be conscious of the principle that a losing litigant ought not to be required to bear that portion of the successful party's costs which is attributable to conduct of the successful party which has unduly protracted the length of the trial."
In Bostik (No 2) at [38] the New South Wales Court of Appeal (Beazley, Ipp and Basten JJA) held : "[38] The principles governing the making of an order as to costs so as to reflect the time taken in dealing with a particular issue in which the successful party in the proceedings or on the appeal did not succeed were reviewed by this Court in Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373. Those principles may be summarised as follows:

Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported).
In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24]. A similar approach is adopted on appeal.
If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 at [27].
Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: State of New South Wales v Stanley [2007] NSWCA 330 at [18] per Hislop J (with whom Beazley and Tobias JJA agreed).
A separable issue can relate to "any disputed question of fact or law" before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34].
Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James v Surf Road Nominees Pty Ltd (No 2), citing Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272. These principles were applied in City of Canada Bay Council v Bonaccorso Pty Ltd (No 3) [2008] NSWCA 57 at [22] and most recently in Turkmani v Visvalingham (No 2) [2009] NSWCA 279."

In Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [61]-[62] the New South Wales Court of Appeal held (Campbell JA with Young JA at [71] and Meagher JA at [72] agreeing): "[61] It is an inevitable part of our legal system that on occasions a judge will act in error. If the error of the judge is not one that has been brought about by one of the parties (or by some other person who is amenable to the jurisdiction that the court now has to make costs orders against non-parties (cf Arena Management Pty Ltd (Receiver & Manager Appointed) v Campbell Street Theatre Pty Ltd [2011] NSWCA 128 at [21]-[25])) the costs of rectifying that error should, prima facie, be treated as one of the vicissitudes of litigation. Therefore, the costs of rectifying the error should prima facie follow the event. [62] This principle is well established in the basis upon which appellate courts make costs orders. Allegations that a judge has made an error make up the daily diet of the Court of Appeal. However, if such an allegation turns out to be correct, the fact that it was a judge who made the error provides no reason for the Court of Appeal to make no order for the costs involved in remedying that error. The bringing of an appeal is a separate "event" to the trial concerning which the appeal is brought, and the application of UCPR 42.1 thus justifies the party who succeeds on that "event" prima facie receiving the costs of that event, ie of the appeal. Thus, if the appropriate way for the Court of Appeal to remedy the error in the court below is to set aside the judgment and enter a judgment for a different party, UCPR 42.1 requires that the costs of both the trial and the appeal be awarded to the party who was successful on the appeal, unless there is reason to do otherwise. If the appropriate way for the Court of Appeal to remedy the error in the court below is to order a new trial, the usual order is that the successful appellant receive the costs of the appeal, and that the costs of the first trial abide the event of the second trial, unless there are special circumstances warranting a different order: Brittain v Commonwealth (No. 2) [2004] NSWCA 427. But, relevantly for the present case, the party who succeeded on the appeal should, prima facie, receive the costs of the appeal, regardless of the fate of the new trial."
These principles have been followed by the Appeal Panel in exercising its discretion as to the costs of an appeal: see, for example, Smith v Giro Construction Pty Ltd [2015] NSWCATAP 214 at [28]; Manca v Tullipan Homes Pty Ltd (No 2) [2022] NSWCATAP 332 at [15]-[16]; Colourrender (Australia) Pty Ltd v Sarkis; Sarkis v Colourrender (Australia) Pty Ltd (No 2) [2023] NSWCATAP 250 at [33(2)]-[33(3)].
In Ruddock v Vadarlis (No 2) (2001) 115 FCR 229; [2001] FCA 1865 (Ruddock (No 2)) at [11] Black CJ and French J made the following observations as to the to the exercise of the Federal Court's discretion in relation to costs: "[11] Within the general discretion of the courts to award costs it is accepted by decisions in both Australian and English jurisdictions that: • Ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order. • Where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed. • A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties' costs of them. In this sense "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or law. See Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136; approved by the Full Court in Queensland Wire Industries Pty Ltd v Broken Hill Co Ltd (1987) 17 FCR 211 (at 222).

The owners corporation's costs application

We do not accept that the owners corporation's costs application was filed and served out of time as it was served by email on 7 September 2023. There was no order of the Appeal Panel requiring the owners corporation's costs application to be served by personal delivery or post. However, to avoid any doubt, to the extent that it may be necessary we extended time for the service of the owners corporation's costs application until 20 September 2023 when it would have been received in the ordinary course of the post.
As the owner was successful in the appeal, we accept that the starting position is that costs should follow the event. Having regard to the principles at [28] to [32] above, we are satisfied that it is appropriate to depart from this starting position and that the owner should be deprived of any costs awarded in her favour in the following respects: 1. as to the costs of and incidental to the directions hearing on 19 July 2023 and the callover on 26 July 2023, because they arose because of the failure of Ms Noor to comply with order 4 when read with note (6) of the 16 June 2023 orders; 2. as to the costs of the 6 July 2023 Noor application, because it lacked any merit for the reasons set out in Noor AP at [40]-[45]; 3. as to the costs of the 19 July 2023 Noor application, because it was misconceived for the reasons set out in Noor AP at [46]-[47]; 4. as to the costs of Ms Noor's claim for loss of rent, because the consideration of that issue involved considerable time both in written and oral argument and it was a severable issue on which she failed for the reasons set out in Noor AP at [73]-[87].
While we accept in accordance with Ruddock (No 2)) at [11] that we have power to order the owner to pay costs of the owners corporation, none of the circumstances that would warrant a departure from the starting position that costs should follow the event in [36] above warrant an order for costs in favour of the owners corporation. Further, as no award of costs has been made in favour of the owner, these same circumstances do not warrant an order that she be deprived of part of her costs.
Rather than seek to apportion the costs of the appeal, we are satisfied that the appropriate exercise of our discretion is that there should be no order as to costs of the appeal.
For these reasons, we dismiss the owners corporation's costs application.

The owner's costs application

As the owner's costs application was not made within the time specified in the procedural orders, we have decided to extend the time for its filing to 20 September 2023.
We have decided to dismiss the owner's costs application as it is not supported by any evidence that she has incurred costs of $4,200.00.

Orders

We make the following orders: 1. a hearing of the application of each of the appellant and the respondent to vary order 6 of the orders made on 24 August 2023 is dispensed with; 2. to the extent necessary the time for the service of the respondent's application to vary order 6 of the orders made on 24 August 2023 is extended until 20 September 2023; 3. the time for the service of the appellant's application to vary order 6 of the orders made on 24 August 2023 is extended until 20 September 2023; 4. the application of each of the appellant and the respondent to vary order 6 of the orders made on 24 August 2023 is dismissed.

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

Amendments 13 October 2023 - (2) changed to (3) on the Title of decision 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: 13 October 2023

Overview

On 24 August 2023, we decided to allow the appeal, set aside the order dismissing the proceedings and make an order in its place, remit specific issues to the Tribunal for consideration, make no order as to the costs of the appeal (the costs order), and make procedural orders for evidence and submissions including on the question of whether an oral hearing may be dispensing with if a party sought to vary the costs order (the procedural orders): Noor v The Owners - Strata Plan No 72939 [2023] NSWCATAP 236 (Noor AP).
The owners corporation has applied to vary the costs order to provide that the owner pay 50% its costs of the appeal within 28 days of agreement or assessment (the owners corporation's costs application).
The owner has applied to vary the costs order to provide that the owners corporation pay her costs of $4,200.00 (the owner's costs application).
We have decided that each of the two costs applications should be dismissed.
These reasons for decision should be read with, and use the same abbreviations as in, Noor AP.

Noor v The Owners - Strata Plan No 72939

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