Papadopoulos v West Precinct Holdings Pty Ltd

1. On 24 September 2025, Ms Papadopoulos as the appellant commenced this appeal against WPH as the respondent by lodging the following documents:

(1) a notice of appeal in which she:

(a) challenged the 11 September 2025 orders;

(b) set out the following grounds of appeal (as summarised by the headings):

"1. Procedural Fairness Denied

2. Failure to consider Medical Evidence

3. Unlawful Rent Demands and Refusals

4. Rent Discrepancy and Misrepresentation

5. Harassment and Unlawful Conduct

6. Utilities - Improper Demands"

(c) set out the orders the Appeal Panel should make including the setting aside of the 11 September 2025 orders;

(d) sought leave to appeal on the grounds that the decision under appeal was against the weight of evidence and significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with);

(2) an application for a stay in which she sought a stay of the 11 September 2025 orders (the stay application).

9 On 30 September 2025, WPH lodged an application for miscellaneous matters seeking an order for the dismissal of the stay application (the 30 September 2025 WPH application).

1. On 10 October 2025, the Appeal Panel constituted by myself made procedural orders for the hearing of the appeal including by order 1 dismissing the stay application, by orders 2 to 4 providing for the documents to be relied on by the parties to be lodged with the Appeal Registry and served upon the other party, and by order 5 listing the appeal for hearing on 16 December 2025 at 2:15 PM at Sydney for a half day.
2. On 24 October 2025, WPH lodged its reply to appeal.
3. On 24 November 2025, WPH lodged an application for summary dismissal of the appeal (the 24 November 2025 WPH application).
4. On 26 November 2025, the Appeal Panel constituted by myself made procedural orders including listing the 30 September 2025 WPH application and the 24 November 2025 WPH application on 16 December 2025 at 2:15 PM at the same time as the hearing of the appeal.
5. On 15 December 2025, the Appeal Panel constituted by myself made an order dismissing the appeal upon its withdrawal by Ms Papadopoulos, and procedural orders for the determination of the foreshadowed WPH costs application.
6. On 5 January 2026, WPH sent an email to the Appeal Registry attaching its Submissions on Costs dated 5 January 2026 which included the WPH costs application (the 5 January 2026 WPH costs submissions) and the statement of Mr Leav dated 5 January 2026 (the 5 January 2026 Leav statement).
7. On 19 January 2026, Ms Papadopoulos sent an email to the Appeal Registry containing her submissions on costs (the 19 January 2026 Papadopoulos costs submissions).
8. On 27 January 2026, WPH sent an email to the Appeal Registry attaching its Reply Submissions on Costs dated 27 January 2026 (the 27 January 2026 WPH costs submissions in reply).

1. The determination of the WPH costs application will involve answering the following two questions:

(1) whether a hearing of the WPH costs application should be dispensed with;

(2) whether a costs order, and if so what costs order, should be made in favour of the WPH.

Whether a hearing of the WPH costs application should be dispensed with

1. Each of WPH and Ms Papadopoulos has submitted that a hearing of the WPH costs application should be dispensed with.
2. I am satisfied that the issues for determination in relation to the WPH costs application can be adequately determined in the absence of the parties by considering their evidence and written submissions. Accordingly, I have decided pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to make an order dispensing with a hearing in relation to the WPH costs application.

Whether a costs order, and if so what costs order, should be made in favour of OSP1731

1. The WPH costs application is pursuant to s 60(2) of the NCAT Act by reason of the existence of special circumstances that are not specified as being within any of the factors in s 60(3)(a) to (g). The determination of this application will involve answering the first and may involve answering the second and third of the following three questions:

(1) whether there are special circumstances warranting an award of costs in favour of WPH;

(2) if so, whether the discretion should be exercised to award costs;

(3) if so, what costs order should be made.

1. Before dealing with this issue, it is appropriate to set out the applicable provisions of the NCAT Act and legal principles, and to summarise the evidence and submissions of the parties.

1. Part 4 Division 5 (ss 56-63) contains provisions dealing with participation in proceedings in the Tribunal. Section 60 deals with costs, and relevantly provides:

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.

costs includes -

(a) ...

(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.

The applicable legal principles under s 60(2) of the NCAT Act

1. In FZK v Secretary, Department of Communities and Justice (No 4) [2025] NSWCATAP 278 (FZK (No 4)) at [31]-[41], [52], the Appeal Panel set out the general principles applicable to an award of costs under s 60(2) of the NCAT Act including:

(1) the usual rule is that a party is to pay their own costs of proceedings but, as the legislation makes clear, the Tribunal may make an order for costs if satisfied that there are "special circumstances";

(2) the following six leading principles are apposite:

(a) first, special circumstances are circumstances that are out of the ordinary. It is not necessary to establish extraordinary or exceptional circumstances;

(b) secondly, the onus is on the party seeking an order for costs to satisfy the Tribunal that there are special circumstances warranting an award of costs in its favour;

(c) thirdly, the Tribunal is to consider whether the circumstances are sufficient to amount to special circumstances that justify departing from the general rule that each party bear its own costs;

(d) fourthly, each case will depend on its own particular facts and circumstances;

(e) fifthly, mere success (or failure) of an application does not give rise to special circumstances;

(f) sixthly, 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;

(3) overall, what is required is for the Tribunal to exercise its discretion in a manner which is fair and reasonable having regard to the particular circumstances of a particular case;

(4) the decision to award costs pursuant to s 60(2) of the NCAT Act involves, in effect, two decisions. The first is the Tribunal's satisfaction that there are special circumstances warranting an award of costs. Satisfaction as to the existence of special circumstances merely enlivens the discretion to award costs rather than mandating an award of costs. This necessitates the making of a second decision as to whether in all the circumstances, an award for costs should be made;

(5) an award of costs is intended to be compensatory and not punitive.

1. In FZK (No 4) at [51], the Appeal Panel noted that a lack of representation can tip the balance against an award of costs.

1. The general principles concerning the awarding of costs where proceedings are discontinued or dismissed by consent were considered by Kunc J in Alijagic v Australian Bosnian-Hercegovina Cultural Association Incorporated [2025] NSWSC 393 (Alijagic). His Honour at [3] noted that the only common ground between the parties was that the principles set out by McHugh J in Re Minister for Immigration & Ethnic Affairs of the Commonwealth of Australia; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 (Lai Qin) are applicable. His Honour at [52]-[59] relevantly explained and summarised the principles including:

(1) the starting point for making an order as to costs where there has not been a final hearing is that the parties should bear their own costs;

(2) while the exercise of discretion will turn on the facts of each case, in general to make a costs order against one of the parties in these circumstances, the court must be satisfied of one of the following on clear and uncontested evidence:

(a) one party behaved so unreasonably in commencing or defending proceedings; or

(b) one party was almost certain to succeed on the interconvertible facts, which may be evidenced by the other party capitulating.

1. The principles in Lai Qin and Alijagic have been applied in the Tribunal: see, for example, Knox v Bollen; Bollen v Knox [2018] NSWCATAP 106 at [45]- [48]; Karpinski v The Owners - Strata Plan No 1731 [2026] NSWCATAP 12 at [22]. While 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, the mere fact that proceedings are withdrawn is not, of itself, a sufficient "special circumstance" to justify a costs order: MacDermott v Wang [2022] NSWCATCD 71 at [45(4)].

1. Mr Leav in the 5 January 2026 Leav statement has attached Annexures A to D:

(1) Annexure A is the following decision of the Tribunal constituted by General Member P Jammy made on 11 November 2025 in proceedings 2025/00393372 between WPH as the applicant and Ms Papadopoulos as the respondent (the 11 November 2025 decision) together a tax invoice dated 13 October 2025 of the NSW Department of Communities and Justice for $124.00 for the filing fee and four tax invoices dated 4 January 2026 of various persons totalling $35.00 for "Transportation Service":

"1 The application is dismissed because the Tribunal considers, that the proceedings are frivolous, vexatious, misconceived or lacking in substance.

Reasons for decision:

The relief sought by the applicant is, at least in part, the subject matter of separate proceedings, brought under case no. 2025/00297340. The Orders made in those proceedings included the termination of a tenancy agreement and the payment of occupational rent.

The respondent has appealed those orders, That appeal (2025/00368591) has not been finalised. The current application includes a claim for rent arrears and an occupation fee. Whether, and the extent to which, any of these amounts are owing is dependent on the outcome of the appeal. It is inappropriate to commence separate proceedings for these amounts."

(2) Annexure B is the email chain ending with the email of Mr Leav to the Appeal Registry sent on 25 November 2025 at 1:05 PM which includes the 24 November 2025 WPH application;

(3) Annexure C is the email of Ms Papadopoulos to the CCD Registry sent on 14 December 2025 at 9:57 PM confirming the posting of documents in proceedings 2025/00423865 between herself as the applicant and WPH as the respondent;

(4) Annexure D is the email of Mr Leav to Ms Papadopoulos sent on 4 November 2025 at 4:15 PM with the subject "Summary of Tenancy Charges and Settlement Offer".

1. WPH in the 5 January 2026 WPH costs submissions relevantly submits:

"3. Appellant's Pattern of Evasion and Bad Faith

Despite owing approx. $25,000 in documented rent arrears, occupation fees, sheriff/Iocksmith costs and property damage [Annexure D] the Appellant:

1. Filed defective appeal (NCAT 2025/00368591) without evidence despite multiple extensions to 1 Dec 2025, wasting Tribunal and Respondent resources

2. Tactically withdrew appeal on 12 Dec 2025 (same day filing comprehensive bond claim 2025/00423865 demanding full bond return), only one full business day before hearing after Respondent's s 55(1)(d) dismissal notice [Annexure B]

3. Delayed enforcement of legitimate debts through defective proceedings, had claimed full bond she's not entitled to in Case 2025! 00423865

4. Caused dismissal of Respondent's Consumer Case 2025/00393372 (filing fee + travel wasted: $159) as "dependent on appeal outcome" [Annexure A]

This conduct demonstrates knowing evasion of legitimate debts while seeking improper financial gain from the Tribunal.

4. Additional Special Circumstances

The above pattern constitutes special circumstances under s 60(2)(a), compounded by:

• Repeated non-compliance - Failed to lodge evidence/submissions despite extensions to 1 Dec 2025
• Inconsistent capacity - Filed comprehensive bond claim submissions same day as withdrawal, contradicting incapacity claims
• Wasted Tribunal resources - Registry time + half-day hearing listing unnecessary

5. Costs Claimed

Costs reasonably incurred due to Appellant's defective appeal:

Item Description Amount

1 NCAT filing/service/copy fees $0.00

2 Printing/stationery/postage/travel* $100

3 Filing fee + travel: Dismissed Consumer Case $124.00 + $35 = 2025/00393372 (Caused by appeal; = $159

dismissed 11 Nov 2025 [Annexure A])

Total $259

* Printing/stationery using existing supplies. Minimal claim vs actual cost for: Reply to appeal (24 Oct), Summons requests x2, Case 2025/00393372 preparation, dismissal application (15 Dec) and cost application.

(Verified in Statement of Jerric Leav.)"

The 19 January 2026 Papadopoulos costs submissions

1. Ms Papadopoulos in the 19 January 2026 Papadopoulos costs submissions relevantly submits:

"1. The appeal was withdrawn because it became futile after eviction

The Applicant vacated the premises on 8 October 2025 and was forcibly evicted on 9 October 2025. The appeal hearing was listed for 10 October 2025, at which point no stay could operate and no effective relief was available. The appeal was overtaken by events beyond the Applicant's control.

2. Procedural unfairness and loss of effective relief

The urgent stay and appeal were not determined prior to enforcement of the possession order, allowing the landlord to enforce the order before the appeal could be heard. Withdrawal of the appeal was therefore compelled by procedural circumstances outside the Applicant's control.

3. Withdrawal was reasonable and on legal advice

The Applicant withdrew the appeal on the strong advice of a solicitor from Redfern Legal Centre, to avoid unnecessary use of Tribunal resources and further distress.

4. No "special circumstances" under s 60(2)(a)

The Respondent has not established any special circumstances justifying departure from the general rule that parties bear their own costs. The Applicant acted reasonably and in good faith at all times.

5. No prejudice to the Respondent

The costs claimed relate to routine administrative expenses that would have been incurred in any event. No exceptional prejudice has been demonstrated."

The 27 January 2026 WPH costs submissions in reply

1. WPH in the 27 January 2026 WPH costs submissions in reply has substantially repeated the 5 January 2026 WPH costs submissions.

Whether there are special circumstances warranting an award of costs in favour of WPH

1. I am not satisfied that WPH has established that there are special circumstances warranting an award of costs in its favour for the following reasons:

(1) having regard to the principles in Lai Qin and Alijagic, WPH has not demonstrated on clear and uncontested evidence in circumstances where there was no hearing of the appeal on its merits that Ms Papadopoulos behaved unreasonably in commencing the appeal, or it was almost certain to succeed on the interconvertible facts, which was evidenced by her capitulation;

(2) there is no evidence that the withdrawal of the appeal by Ms Papadopoulos was "tactical" in the sense of being undertaken for a collateral or improper purpose;

(3) it is inappropriate in this appeal to determine whether proceedings 2025/00423865 commenced by Ms Papadopoulos for return of the rental bond lack merit. There is no contradiction between the withdrawal of the appeal and the commencement of these proceedings;

(4) Ms Papadopoulos did not cause the dismissal of proceedings 2025/00393372 commenced by it for recovery of occupation fees. As recorded in the 11 November 2025 decision these proceedings were dismissed because they were frivolous, vexatious, misconceived or lacking in substance;

(5) the Appeal Panel was satisfied that it was appropriate to grant extensions of time to comply with procedural directions sought by the parties in this appeal.

If there are special circumstances warranting an award of costs in favour of the WPH, whether the discretion should be exercised to award costs

If the discretion should be exercised to award costs in favour of the WPH, what costs order should be made

1. In view of my decision that there are no special circumstances warranting an award of costs in favour of WPH, these questions do not arise for determination.

(1) A hearing of the application of the respondent that the appellant pays its costs of the appeal (the WPH costs application) is dispensed with.

(2) The WPH costs application is dismissed.

(3) Each of the appellant and the respondent is to pay their costs of the appeal.

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.