Ramid Investments Pty Ltd v The Owners - Strata Plan No 45205

RESPONDENT'S SUBMISSION 7The respondent's relevant submissions were to the following effect. 8Whilst three applications were heard and determined by the Tribunal, the issue of costs only arises in respect of SCS 12/31156 which was an appeal from the decision of an Adjudicator on application for adjudication SCS 12/00509. The other two applications determined by the Tribunal were applications for adjudication that had been referred to the Tribunal pursuant to the provisions of the Strata Schemes Management Act 1996 (the Management Act) s 164. In relation to those two matters the Tribunal is precluded by the provisions of the Management Act s 184 from consideration of any costs application. 9The respondent relied on the provisions of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) s 60(2) and (3) in seeking a costs order on the basis that there are special circumstances warranting the award. 10It was submitted that special circumstances should be found having regard to s 60(3)(a),(b),(e) and (f). 11In respect of s 60(3)(a) and (b) it was submitted that the applicant had unreasonably prolonged the time to complete the proceedings and had sought to deny the respondent a right to be heard. Reference was made to paras 25 and 26 of the decision which referred to the applicant's poor preparation, failure provide relevant documents and the use of emotive and pejorative language and to the allegations of criminal activity of various kinds (including by the respondent's solicitors) without provision of any supportive evidence. 12The applicant persisted in that approach despite directions made by Senior Member Meadows and Senior Member Thode at earlier hearings. 13In regard to s 60(3)(e) the respondent's submission was that the application was misconceived, lacking in substance and that it was vexatious. The applicant relied on the determination of the Adjudicator and the finding at para 109 of the Tribunal's decision that the appeal was both misconceived and lacking in any substance. 14The submission relied on the definition of "vexatious" in the Vexatious Proceedings Act 2008 s 6 as including: a)Proceedings that are an abuse of process, b)Proceedings instituted to harass or annoy, to cause delay or detriment or other wrongful purpose, c)Proceedings instituted or pursued without reasonable ground. 15The submission further claimed that the proceedings were instituted without reasonable grounds, and were conducted in a manner so as to harass or annoy and cause delay and detriment and were an abuse of the Tribunal's process. 16In regard to s 60(3)(f) it was submitted that the applicant had failed in its duty to the Tribunal under the NCAT Act s 36(3) to co-operate with the Tribunal and to comply with directions of the Tribunal and had failed in its duty to facilitate the quick, just and cheap resolution of the dispute.

APPLICATION OF RELEVANT LAW 17The NCAT Act s 60 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 Division 11 of Part 3.2 of the Legal Profession Act 2004 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. 18The respondent's submission deals with the issue of costs on the basis of that section. 19Application for adjudication SCS 12/00509 was filed with the Registrar of the Consumer, Trader and Tenancy Tribunal (CTTT) in early 2012 and was dismissed by order of an Adjudicator on 18 May 2012. The appeal from that decision was filed in the CTTT on 7 June 2012. 20The application had a delayed history in the Tribunal for reasons that are unnecessary to examine again, including a strike-out application determined on 24 September 2013. 21By the time the matter came before me for hearing on 3, 4 February 2014, the CTTT had been replaced by the Civil and Administrative Tribunal (NCAT). The transitional provisions under the NCAT Act are a major determinative factor in this costs application and have not been considered in the submissions received. 22The NCAT Act Schedule 1deals with the saving and transitional provisions and in part provides: 7 Pending proceedings before existing tribunals transfer to NCAT (1)Unheard proceedings in an existing tribunal are taken, on and from the establishment day, to have been duly commenced in NCAT and may be heard and determined instead by NCAT. (2)In relation to part heard proceedings in an existing tribunal, the person or persons constituting the tribunal for those proceedings: (a) are to continue, on and from the establishment day, to hear the matter, and to determine the matter, sitting as NCAT, and (b) are taken to have been duly appointed as members of NCAT for the purposes of determining the matter even if the person or persons have not been appointed as members of NCAT by or under another provision of this Act, and (c) may have regard to any record of the proceedings before the existing tribunal, including a record of any evidence taken in the proceedings before the existing tribunal. (3)For the purposes of subclauses (1) and (2): (a) NCAT has and may exercise all the functions that the relevant existing tribunal had immediately before its abolition, and (b) the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted continue to apply. 23Pending proceedings are defined at Schedule 1, clause 6 as "pending proceedings" are proceedings (including appeals) that: (a) were instituted or commenced before the establishment day, and (b) have not been finally determined before that day by the court or existing tribunal in which the proceedings were instituted or commenced. 24I am satisfied that these proceedings were commenced before the establishment day (being 1 January 2014) as they were commenced by filing the appeal in the CTTT on 7 June 2012 and are therefore within the definition of "pending proceedings". 25Clause 7 provides that this appeal is to be dealt with by NCAT as though it was commenced in NCAT rather than the CTTT. Clause 7(3)(b) provides that in doing so, NCAT must apply the law that would have been in place but for the NCAT Act and the amending Acts. 26Hence, I am satisfied that in considering this application for costs I must apply the relevant provisions of the Management Act as it was prior to 1 January 2014. 27The Management Act at s 192 provided at that time 192 Orders relating to costs The Tribunal may not make any order for the payment of costs except as specifically authorised by this Act or in relation to an order dismissing an application or appeal because: (a) the application or appeal is frivolous, vexatious, misconceived or lacking in substance, or (b) a decision in favour of the applicant or appellant is not within the jurisdiction of the Tribunal.

28That section has now been repealed but I am satisfied that Schedule 1, clause 7(3)(b) requires that I apply it to the circumstances of this case. 29It may be argued that s 192 of the Management Act and the provisions of s 60 of the NCAT Act co-exist and that both apply to the circumstances of this case. However, it is not necessary for me to determine that issue because if the provisions of s 60 do apply concurrently with s 192 then the wording of s 192 precludes the making of an order for costs except in the circumstances set out in that section. 30That is, by application of s 192 I am left with the situation in which a costs order may only be made if the appeal is found to be "frivolous, vexatious, misconceived or lacking in substance". 31The respondent, although relying on the provisions of the NCAT Act s 60(3)(e), did make submissions that the appeal was vexatious, misconceived and lacking in substance. 32As pointed out by the respondent's submission, I have already determined that issue. In my decision at para 109 a finding was made that the appeal was misconceived and lacking in substance for the reasons set out in the substantive decision. 33It is, in a sense, unnecessary for me to determine also whether the appeal was "vexatious". However, as the respondent claims that it is I believe it is necessary to deal with that issue. 34The definition of "vexatious" that should apply is correctly submitted by the respondent to be that applying under the Vexatious Proceedings Act 2008. Despite the fact that the Tribunal is not an "authorised court" that may make a finding under that Act that proceedings are vexatious, nevertheless the definition of "proceedings" in that Act contemplates an action in a Tribunal. Further, the definition provides valuable guidance to a determination under s 192 of whether the appeal was vexatious. 35For reasons already set out I am satisfied the appellant has not prosecuted this case in a proper manner. There have been wild, emotive allegations without provision of supporting evidence, there were no reasonable grounds stated for the appeal, there was a failure to provide proper evidentiary material in accordance with Tribunal directions and there was persistence in attempting to deny the respondent a voice in circumstances where the Tribunal had already made its position clear on that issue. 36I am satisfied that it is reasonable to conclude that the proceedings were conducted in a manner calculated to harass, annoy and cause delay and that they were therefore, in addition to being misconceived and lacking in substance, "vexatious". 37For the above reasons I am satisfied pursuant to the provisions of the Management Act s 192 (as it was before 1 January 2014) that the Tribunal has the discretion in the circumstances of this appeal to make a costs order. 38As with any order for costs the intention is to compensate the successful party rather than to punish the unsuccessful one. 39The principle was set out by the High Court in Latoudis v Casey [1990] 170 CLR 534, at 566,7 per McHugh J "An order for costs indemnifies the successful party in litigious proceedings in respect of liability for professional fees and out-of-pocket expenses reasonably incurred in connection with the litigation: Kelly v Noumenon Pty.Ltd. (1988) 47SASR 182. The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory. Thus, in civil proceedings an order may, and usually will, be made even though the unsuccessful party has nearly succeeded or has acted reasonably in commencing the proceedings." 40In order to adequately compensate the respondent for the costs of defending this appeal the above order should be made. J Smith Senior Member Civil and Administrative Tribunal of New South Wales 8 April 2014 I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

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: 24 July 2014