Peter and Amanda Pty Ltd atf The Ryder Superfund v Johnson (No 2)

Submissions - Indemnity Costs

This prolonged matter has caused my wife and I significant personal and financial stress at a critical time in our lives, as we manage our business, fulfil teaching responsibilities, and oversee the construction of our family home.

Had Mr. and Ms. Davey received proper legal advice, they would have been made aware that their claim had no reasonable prospect of success. Their actions have resulted in an unnecessary waste of the Tribunal's time and have imposed an undue burden on us, both financially and personally, in defending yet another baseless claim.

Accordingly, we seek costs due to the on-going intrusion of this matter, which has directly impacted income-generating activities within my business. The continued and unwarranted nature of the applicants' claim has necessitated the engagement of GABKO PTY Ltd for professional consultative services to defend against these baseless claims and allegations.

A breakdown of the unnecessary costs incurred is as follows:

Professional consultation fees (GABKO PTY Ltd): $3,135.00

Time lost from business operations: $2,200.00

Administrative costs incurred: $220.00

Additional expenses (travel, document preparation): $120.00.

1. This is a total of $5,675.00.
2. Accompanying the submissions is an invoice of Gabko Pty Ltd dated 1 April 2024 in the sum of $3,135.00 for the following services:
   • provide professional consulting services for preparation and submission of documentation and evidence for NCAT matter (3 hours);
   • phone conferences & calls, teams & zoom meetings - time taken charged at hourly rate (2 hours);
   • provide professional consulting services for preparation and submission of documentation and evidence for NCAT matter (1 hour);
   • obtain information from legal services and realtor services regarding tenancy agreements as instructed by client (1 hour).
3. That is the totality of the materials provided by the respondent on the question of costs.

1. In summary, in submissions filed on or about 12 June 2025, the appellant submits:

1. The Hearing and therefore the Appeal do not have jurisdiction and must be set aside.

2. The [Appeal] Panel improperly voided errors in law that conferred appeal as of right.

3. The conduct of the Hearing where the Member inserted himself into the proceedings and chose evidence the Respondents should use and directed arguments for that evidence went beyond the role of the Member to provide fair and impartial arbitration.

4. No costs should be awarded.

The [Appeal] Panel made errors causing Respondent's submissions in reply.

1. In its submissions, the appellant then develops arguments in relation to:

(1) the "identity of the landlord and jurisdiction", "items 26 to 37";[1]

(2) "Question of Law and Leave to Appeal on specific items of Appeal;"[2]

(3) the "Tribunal Hearing, Procedural Unfairness and Primary Decision".[3]

1. These arguments appear to seek to reagitate matters considered at the appeal hearing and in the Appeal Decision.
2. If the appellant disputes any of the findings of the Appeal Panel, it is open to it to appeal to the Supreme Court of NSW on a question of law.
3. In its submissions, the appellant then turns its attention to the costs of the appeal.
4. We set out the appellant's submissions in full, noting that much of the material under 3g further sought to agitate matters which were properly the subject of an appeal against the substantive decision:

Respondent has made cost claims.

We understand that Parties generally pay their own costs except for certain out of pocket expenses for preparation. The [Appeal] Panel listed guidelines where costs may be awarded as follows

Item164(1) [4] states that each party pays its own costs.

Item 164(2) [5] states Tribunal may award costs in special circumstances.

Item 164(3) [6] lists special circumstances. The special circumstances follow with our responses -

... (3a) - has either party unnecessarily disadvantaged the other party? No evidence of [incomplete in original]

3b - has either party unreasonably prolonged the proceedings? No evidence of. The only prolonging of proceedings was by the Tribunal in providing written reasons.

3c - merit - Panel accused us of having a second go. But Appeals only permit the original evidence and do not allow new evidence so they are nothing if not a "second go". Our Appeal is clearly and obviously a genuine appeal setting out issues of law and procedure. Nor was it without any prospect of success as asserted by Respondent. We showed that it succeeded in jurisdiction, in errors in law, in procedural fairness. Appeal Panel was obligated to respect our appeal as of right or to set all Tribunal orders aside on basis of jurisdiction. We showed by correcting errors and contradictions by the Panel that it could not in law deny, dismiss or refuse our Appeal. That the Panel did not agree does not justify its biased and defamatory comment about a second go to diminish the genuine work and effort we made for a genuine Appeal process.

3d - complexity - Respondent provided minimal submission to the Appeal. He was not materially affected by the nature and complexity of proceedings by the Panel.

3e - frivolous - the Proceedings are self -evidently not frivolous or vexatious. Why would we put ourselves through this fraught, expensive and life-consuming NCAT process for trivial reasons?

3f - section 36(3) -There is no non-compliance with section 36(3).

3g - any other - The Panel worked to find against the Appeal flying in the face of Jurisdiction, as of right appeal, demonstrated errors in law, unjustified criticisms of the Appellants and amendments without notice. Items the Panel did not get right as follows-

items: 8 (Hypocritical, the Panel ordered the large and costly volume of evidence at the Call over hearing), 31 (Tribunal was wrong contradicts 84), 33 only 3 days late, Amanda Davey had a heart operation 3 May, 3 days late was immaterial), 37 ( one of the parties is a company - not correct), 46 (NCAT Act 80(2) does not confer discretion), 51 (the RTA was not our evidence), 55 (landlord did not rely on OCR), 84 (landlord did not make assertion about correct name), 84 (Tribunal was right contradicts 31), 95 ( the bond funds were released and they belonged to the landlord), 106 (misreading by Panel and Member of critical email from tenants to landlord 28 June 2024), 111 (ECR and OCR were not our evidence), 116 ( cleaning evidence was not examined), 117 (no references in the transcript because none existed),119 (only one OCR not two, we did not rely on it), 121 (Panel was dismissive of correct facts), 125-128 (OCR was not our evidence, it was by the Member against us in support of tenants), 134 (RTA not our evidence), 137/138 (non sequitur by Panel; 137 is 28 June 24, 138 is late July 24),151 (wrong, we claimed damages from tenants not bond funds which we left untouched), 155 (wrong; bond was repaid by the Agent. Order was against P&A Davey. We could not comply. Order was also out of jurisdiction), 161(gratuitous criticism re 2nd go; clearly wrong and not even a term in the Act),

1. In the Primary Decision, cognisant that the parties were not legally represented, we stated at [164] of the Appeal Decision that in matters where the amount claimed is under $30,000, the relevant costs rule is that found in s 60 of the NCAT Act.
2. For the assistance of the parties, we then set out s 60, which 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.

(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.

(5) In this section-

"costs" includes--

(a) the costs of, or incidental to, proceedings in the Tribunal, and

(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.

(emphasis as given by the Appeal Panel in the Primary Decision)

(emphasis added)

1. We should have indicated at the time, that pursuant to r 38A of the Civil and Administrative Tribunal Rules 2014 (NSW), despite s 60 of the NCAT Act, the Appeal Panel must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal.
2. That means the costs rule in s 60 is the relevant costs rule for the costs of this appeal, that is to say, there must be "special circumstances" to justify a costs order in favour of a party.
3. The Appeal Panel has considered on many occasions the applicable principles as to whether there are "special circumstances" to justify a costs order in favour of a party. The principles were summarised in The Owners-Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 at [6]- [15] as follows:

(1) "special circumstances" mean out of the ordinary but not to the degree of being exceptional or extraordinary;

(2) a costs order is not made simply because one or more of the circumstances in s 60(3) of the NCAT Act is established. The special circumstances must be sufficient for the Tribunal to exercise its discretion in favour of making a costs order;

(3) the party seeking costs bears the onus of persuading the Tribunal that the special circumstances are sufficient to justify departing from the usual principle in s 60(1) of the NCAT Act;

(4) the discretion should be exercised judicially, with consideration that the usual principle is that by reason of s 60(1) of the NCAT Act each party bears its own costs, and the Tribunal must be persuaded to depart from that principle;

(5) whether there are sufficient special circumstances to justify a costs order is a question of fact and each case must be assessed according to its circumstances.

1. The respondent does not in terms address the criteria for establishing special circumstances which are set out in s 60.
2. Nevertheless, we note that the respondent seeks costs because the appeal process has "directly impacted income-generating activities within" his business, causing him to seek "professional consultative services to defend against these baseless claims and allegations".
3. We accept that the respondent incurred expenses in defending the appeal.
4. Nevertheless, apart from the respondent's statements to that effect, there is no probative evidence before us to determine whether that assertion is correct. As we stated in the Primary Decision at [80], the uncorroborated say so of a party that work has been undertaken poorly or that a loss has been suffered in a particular amount is rarely, if ever, sufficient proof of the poor work or the loss being suffered: Pate v Chan [2010] NSWCTTT 221; Buckland v Goodwin [2009] NSWCTTT 685.
5. We accept that that the respondent has been invoiced by Gabko Pty Ltd (which provides "expert witness services - Automotive & Marine, Collision Data Retrieval & Reporting Forensic Investigations and reporting" for consultancy and dispute resolution services in the sum of $3,135.00.
6. However, the connection between those services and the appeal proceedings are unexplained.
7. As for the other times claimed, being time lost from business operations ($2,200.00), administrative costs incurred ($220.00) and additional expenses (being travel, document preparation) in the sum of $120.00, no evidence at all is provided.
8. In any event, there are no submissions before us as to why any of these matters invokes one of the factors set out in ss 60(3)(a) to (g) of the NCAT, less still why, even if established, our discretion should be exercised to award costs.
9. Accordingly, our view is that the application for costs should be dismissed.
10. Thus, it becomes unnecessary further to consider the appellants' submissions on costs, including whether parts of the submissions were scandalous and for that reason ought not to be taken into account: cf Uniform Civil Procedure Rules 2005 (NSW) r 4.15.

1. The respondent's application for costs will be dismissed.

(1) A hearing is dispensed with.

(2) The respondent's 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.

[1] Being a reference to [26] - [37] of the Primary Decision

[4] That is, paragraph [164(1)] of the Primary Decision

[5] That is, paragraph [164(2)] of the Primary Decision

[6] That is, paragraph [164(3)] of the Primary Decision