Nowak v Pellicciotti

NCAT Appeal Panel|2018-11-23

Summary

On 30 July 2018, we dismissed the appeal in this matter: Nowak v Pellicciotti [2018] NSWCATAP 245 (the primary decision).
At the conclusion of our reasons, we directed the parties to file submissions as to costs, including whether costs could be determined on the papers and without a hearing. The respondent filed submissions seeking an order that the appellant pay his costs of the appeal. The appellant filed submissions opposing the making of such an order.
The parties do not oppose the application for costs being determined on the papers.
For the following reasons, we have decided to dismiss the respondent's application for costs.

The primary decision

We do not propose to repeat our reasons. In summary, the appellant raised some 13 grounds of appeal. Only grounds (5), (10), (13) might be thought to raise a question of law. We dismissed each of those grounds.
Grounds (2), (3), (6), (7), (8), (9), (11) and (12) raised questions other than questions of law. We were not persuaded that leave to appeal should be granted in respect of any of those grounds.
It was not necessary to deal with ground (1).

Relevant principles

The starting point is rule 38A of the Civil and Administrative Tribunal Rules 2014. Rule 38A provides: 38A Costs in internal appeals (1) This rule applies to an internal appeal lodged on or after 1 January 2016 if the provisions that applied to the determination of costs in the proceedings of the Tribunal at first instance (the first instance costs provisions) differed from those set out in section 60 of the Act because of the operation of: (a) enabling legislation, or (b) the Division Schedule for the Division of the Tribunal concerned, or (c) the procedural rules. (2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal.
The "first instance costs rules" are found in r 38. That rule 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: (a) the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under clause 10 (2) of Schedule 4 to the Act in relation to the proceedings, or (b) the amount claimed or in dispute in the proceedings is more than $30,000.
This was not a matter where either r 38(2)(a) or (b) applies: see the recent discussion in The Owners Corporation Strata Plan No. 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256.
Accordingly, the appropriate costs rule in this appeal is to be found in s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act). Section 60 relevantly provides: (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.
As the Appeal Panel noted in Kadsielski v Guca 1 Pty Ltd [2018] NSWCATAP 223 at [14] to [16], followed in Five D Pty Ltd v The Owners-Strata Plan No. 79642 [2018] NSWCATAP 244 at [6], the relevant principles include the following.
First, special circumstances are circumstances that are out of the ordinary, they do not have to be extraordinary or exceptional: CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21.
Secondly, each case depends upon on its own particular facts and circumstances: Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152.
Thirdly, 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.

Respondent's evidence and submissions

The respondent relies on his affidavit of 24 October 2018. In that affidavit, he submits that:

the appellant has harassed him and his family, which harassment culminated in an Apprehended Personal Violence Order being issued;
he has incurred advertisement and marketing costs occasioned by having to move out of his apartment due to the appellant's harassment;
the appellant's attendance at a Council meeting contributed to Council deferring its consideration of the respondent's development application.

The respondent says that he has incurred $4,425.00 in relation to his costs of the proceedings in the Tribunal, and a further $6,050.00 in relation to the appeal. He seeks an order that the Appeal Panel award him $6,050.00 as fixed or lump sum costs.
The respondent relies on ss 60(3)(c) and (e) of the Act, in particular that the appeal had no tenable basis in fact or law, and was otherwise frivolous or vexatious or misconceived or lacking in substance.
In summary, the respondent submits that the appellant failed in all thirteen grounds of appeal, that those grounds each lacked a legal basis or merit, and that it can be inferred that the proceedings were brought solely for the purpose of harassing him and causing him financial strain. The respondent submits that the proceedings were "untenable and manifestly groundless", and that the appeal never had any real prospect of success.
The respondent also submits that the proceedings were "vexatious proceedings" within the meaning of the Vexatious Proceedings Act 2008 (NSW). The respondent relies on the oft-quoted passage of Roden J in Attorney-General v Wentworth (1998) 14 NSSWLR 481. That decision considered the predecessor legislation to the Vexatious Proceedings Act. His Honour stated at p 491 that: Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against they are brought; brought for collateral purposes and are not for the purpose of having the court adjudicate on the issues to which they give rise, or if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
The respondent submits that, given the appellant's history of harassing him, the appellant instituted vexatious proceedings, namely, the present appeal.

Appellant's submissions

In summary, the appellant:

submits that the usual rule in relation to costs is that each party to proceedings in the Tribunal is to pay the party's own costs: s 60()1) of the Act;
objects to the Respondent relying on the Affidavit as no Order and/or leave has been given for the Respondent to do so, particularly as the evidence is prejudicial; and
submits that none of the matters relied on by the respondent in relation to s 60(3) are established.

Consideration

We have set out the provisions of s 60 above. The respondent does not submit that the appellant conducted the proceedings in a way that unnecessarily disadvantaged him, nor does he suggest that the appellant unreasonably prolonged the proceedings. He does not make any submissions as to the relative strengths of the claims made by each of the parties. He makes no submissions as to the nature and complexity of the proceedings, or whether the appellant refused or failed to comply with the duty imposed by s 36(3) of the Act.
He does submit that the proceedings were vexatious and, by implication, that they were without substance, and brought by improper motives. We reject that submission. We did not find, in the primary decision, that any of the grounds of appeal were without substance or otherwise hopeless. Even though, ultimately, we dismissed each ground, they were arguable points.
We do not consider that matters which allegedly took place outside the appeal hearing and which were unconnected with the appeal constitute special circumstances (assuming them to be true). We do not accept that the appellant instituted proceedings for the purpose of harassing the respondent.
We are not persuaded that any of the matters raised by the respondent, either individually or cumulatively amount to special circumstances warranting an award of costs. In the circumstances, the application for costs is dismissed. It is not necessary to consider the appellant's submissions.

Orders 1. A hearing on the issue of costs is dispensed with. 2. The appellants' application for costs 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 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: 23 November 2018

At a glance

Court

Decision date

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (7)