Pines Resort Management Pty Ltd t/as Gateway Lifestyle the Pines v Marsh

Submissions

1. It is common ground that the cost provisions in s 60 of the NCAT Act apply. That is, each party is to pay their own costs. However, the Tribunal may make an award for costs if satisfied there are special circumstances. Special circumstances means out of the ordinary, but not necessarily extraordinary or exceptional: see Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11].
2. The respondent provided written and oral submissions in support of its application for costs.
3. In written submissions dated 20 November 2018, the respondent said: 1. The appeal lacked merit in fact or law and had no reasonable prospects of success. Adjournment requests were made by the appellant, even after the decision in Reckless was handed down. 2. The continuation of the appeal proceedings and the seeking of "further indefinite adjournments of the hearing date and further extensions of time for compliance with procedural directions … were arguably a 'gross abuse of the legislation by frivolous and vexatious and misconceived proceedings'". 3. Having regard to the conduct of the proceedings at first instance, in so far as leave to appeal was required, leave would not be granted by the Appeal Panel as the decision at first instance was not against the weight of evidence. 4. The appellants have breached their duty under s 36 of the NCAT Act in that they have not fully complied with all orders of the Appeal Panel; 5. The conduct of the appellant has disadvantage the respondent.
4. In oral submissions the respondent accepted that, usually, the Tribunal should not adjudicate on the substantial issues in dispute where the appeal is withdrawn.
5. The respondent acknowledged that a stay of the original orders had not been granted and that the amount of $1166.06 payable to the respondent pursuant to orders made by the Tribunal on 27 April 2018 had in fact been paid.
6. When asked what account should be taken to the fact that the proceedings had, in part, been delayed awaiting the outcome of the Supreme Court decision in Reckless, the respondent submitted that the appellant should be allowed a period of 28 days to consider the decision of Davies J in Reckless but after that time costs should be payable. Further, it was open to the appellants to obtain legal advice at an earlier time if they so wished.
7. In addition, the respondent noted that it had been required to prepare the appeal book and index which, she said, arose from the conduct of the appellant.

Consideration

1. As accepted by the respondent, it is generally inappropriate for the Tribunal to embark on a theoretical examination of the appeal to determine questions of costs where the appeal has been withdrawn prior to a final hearing.
2. Suffice to say, having regard to the questions of construction dealt with in the decision of Reckless and having regard to factual questions relevant to determining whether electricity charges can be claimed, even in light of this decision, I am not satisfied that the proceedings lacked merit in fact or law nor do I think they can be categorised as a "gross abuse" or frivolous, vexatious or misconceived.
3. In my view, the submission of the respondent that the appellant should have been allowed only 28 days to obtain legal advice following the decision in Reckless is itself an acknowledgement that the appeal did not lack substance and, following its delay because of the Supreme Court proceedings, a period of time or reasonably allowed to the appellant to consider its position.
4. In the present case, the appellant was represented by its officers and employees. It did so consistent with s 45 of the NCAT Act, which provides that a party has the carriage of their own matter and is not entitled to be represented by a lawyer other than with leave. As the letter from the appellant set out above reveals, the appellant obtain legal advice concerning the effect of the decision in Reckless after it was published and formed the view that the appeal should be withdrawn. In my view this conduct was reasonable and, in the circumstances of this case, I do not consider it to be out of the ordinary.
5. While the respondent did undertake work in the preparation of evidence and submissions, again, nothing was out of the ordinary in respect of the steps taken.
6. There is nothing in the conduct of this case that would suggest the appellant did not meet its obligations under s 36 of the NCAT Act and, in circumstances, where s 60(1) provides that each party is to pay their own costs, I am not satisfied there is any reason to depart from the position that each party should pay their own costs.

Orders

1. The Appeal Panel makes the following orders: 1. 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. 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: 08 January 2019