This is an internal appeal under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) by Ms Sandra Pozo (the tenant) against a decision made by consent in the Consumer and Commercial Division of the Tribunal on 23 December 2020. The consent order disposing of the proceedings below terminated a residential Tenancy Agreement between the parties and gave possession of the residential premises to the landlord (the respondent to the appeal) on 15 June 2021 which was approximately six months after the consent order.
The consent order made on 23 December 2020 also provided for a daily occupation fee to be paid by the appellant and some minor matters concerning a rental credit to be paid to the appellant. The substantive appeal is no longer in issue as the appeal was withdrawn.
[2]
Background
On the substantive tenancy matter, the tenant appealed to the Appeal Panel of the Tribunal on 10 June 2021 some days prior to the order for possession coming into effect. A number of interlocutory orders were made by the Appeal Panel as the appeal progressed to hearing including consideration of stays and extensions of the orders of the Tribunal while the appeal awaited determination. The day prior to the hearing of the appeal the appellant notified the Appeal Panel and the respondent that she wished to withdraw their appeal. In preparing for the hearing of the appeal on 27 July 2021, the respondent had foreshadowed in written material and submissions filed 21 July 2021 that it would be seeking an order for costs in the appeal.
We heard the withdrawal of the appeal on 27 July 2021 at Parramatta where the appellant was represented by an agent. The respondent pressed the application for costs of the appeal and the Appeal Panel made orders for the Registrar to serve material of the appellant on the respondent and for both parties to provide brief written submissions on the question of costs and whether that issue could be determined in the absence of the parties (without a hearing).
We dismissed the substantive appeal pursuant to s 55(1)(a) of the NCAT Act as the appellant had withdrawn the matter in writing.
These reasons relate only to a costs application by the respondent, Willtip Pty Ltd, arising from the withdrawn appeal.
[3]
Hearing on the papers
In their application and submission on costs the respondent did not seek an oral hearing and requested that the matter of costs be decided on the papers. In submissions in reply the appellant having been given the opportunity to make submissions did not object to dispensing with a hearing and have the costs application determined on the papers. As the parties to the costs application have been given an opportunity in accordance with s 50(3) of the NCAT Act to make submissions about whether a hearing of the costs application should be dispensed with, we have decided to dispense with such a hearing and deal with the application on the papers. In our view the issues can be adequately determined without a hearing.
[4]
Costs application
The application for costs was made on the basis that there are special circumstances warranting an award of costs. Whilst these are appeal proceedings arising from proceedings in the Consumer and Commercial Division of the Tribunal, they are not proceedings to which r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) apply. Where applicable that rule provides for the awarding of costs in circumstances other than special circumstances. As r 38 does not apply, this application is governed by the provisions of s 60 of the NCAT Act which provide for costs only in special circumstances.
Section 60 relevantly provides the following matters relating to an award of costs:
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.
[5]
Submissions
The respondent applies for costs or disbursements in the amount of $10,453.00 The respondent was invited at the hearing to review the scope of the claim for costs in submissions. However, the respondent pressed the full amount claimed.
As part of its claim the respondent included amounts incurred in enforcing the Tribunal's orders (enforcement of warrant for possession costs in the sum of $357.00) which is not part of the appeal.
The respondent also claimed for 112 hours for preparation of the material filed 21 July 2021 (a 338 page submission). That material includes a reproduction of material before the Tribunal in first instance, copies of internet searches concerning comparable properties for lease and copies of emails between the parties as well as copies of Tribunal orders and documents lodged with the Tribunal. We note that in arriving at the total of the costs claim, the respondent has claimed for responding to the appeal and attendances by a real estate employee, charged at $80.00 per hour and total 112 hours.
We observe that s 60 of the NCAT Act does not require that all the provisions need to be enlivened to establish special circumstances. However bearing in mind the appellant / tenant's medical evidence, we are not satisfied that this is a matter where the existence of special circumstances is sufficiently made out by the landlord / respondent.
The respondent filed a ten paragraph submission on special circumstances on 26 July 2021. We note that the submission raises matters that establish that the appellant / tenant gave little notice prior to the hearing of vacating the premises and 'abandoning' her appeal. However paragraph [3] of the submission concerns the 338 page submission of the respondent / landlord referred to above. Like paragraph [3], much of the submission does not advance any argument for special circumstances merely restating matters not in dispute.
The respondent also submits that the appellant's case was hopeless from the outset. Without having heard the appeal, we are not in a position to make such a finding, but note that much of the appellant's appeal appears bound up in her significant change of personal medical circumstances. We note that one party to proceedings often believes that the other party's case is hopeless or without merit. This of itself does not enliven special circumstances.
In response to the final submission of the respondent, we do not agree with the submission that three Tribunal Members have noted the matter as being misconceived. The Tribunal initial orders were by consent. In the appeal directions a Deputy President of the Tribunal saw fit to grant the appellant a stay. In respect of our adjudication on the substantive appeal, we dismissed the matter under s 55(1)(a) of the NCAT Act by reason of its withdrawal, and not under s 55(1)(b) of the NCAT Act as misconceived or lacking in substance. We therefore do not agree with this aspect of the respondent's submission.
[6]
Consideration
To enliven the "special circumstances" under s 60 of the NCAT Act the circumstances may be out of the ordinary, but they need not be extraordinary or exceptional: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11].
On the material before the Appeal Panel, it appears that the appellant (not being legally represented) was seeking fresh evidence be received in order to establish that different circumstances had arisen which (in the appellant's view) required the matter to be determined again by the Tribunal. As observed above, these matters related to a change in the appellant's medical circumstances.
Whilst the respondent had prepared for the hearing of the appeal, it is difficult to see how they were otherwise disadvantaged by the fact that on the day prior to the hearing the appellant signalled her intention to withdraw the matter. The withdrawal of an application is not in our view grounds for special circumstances. It might be grounds for consideration of an order for costs in proceedings where s 60 of the NCAT Act does not apply.
We are not satisfied that any of the other provisions of the section apply to the circumstances of this appeal and even where it is arguable that they might, we cannot see how special circumstances are enlivened. The appellant has provided significant medical evidence as part of her submission relating to the withdrawal and resisting of the costs application. Because of the sensitivity of the material and concerns as to confidentiality we do not see any need to set out that material in these reasons, but note that it was served in the respondent so that they could respond to the matters raised.
In such circumstances we fail to see how the appellant might have caused prejudice by unnecessarily prolonging the proceedings (s 60(3)(b) of the NCAT Act).
In the case of Pines Resort Management Pty Ltd t/as Gateway Lifestyle the Pines v Marsh [2019] NSWCATAP 12 (Pines) the Appeal Panel considered a costs application in similar circumstances where an appeal had been withdrawn and dismissed.
In Pines the following on the appropriate approach to such an appeal was addressed at [18]:
"[18]. 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."
We agree with the merit of such an approach.
We note that from Pines the Appeal Panel considered the manner in which the appellant had prepared the appeal. At [22] to [23 ] of Pines the Appeal Panel observed:
"[22] 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.
[23] 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."
In the current matter we reach the same conclusion as the Appeal Panel in Pines on the evidence and material before us.
[7]
Orders
We make the following orders:
1. pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), order that a hearing of the respondent's application that the appellant pay the respondent's costs of the appeal be dispensed with;
2. the application for costs order made by the respondent is dismissed.
[8]
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
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Decision last updated: 24 November 2021