Russo v The Owners - Strata Plan No 53188

(1) "Bathroom Rectification" (for ensuites and bathrooms in Lots 117 and 118);

(2) "External Leak Rectification Works" (balcony rectification works to the balcony of Lot 122);

(3) "Damages" (agreed compensation for loss of rent of $95,000);

(4) "Costs" (agreed directions for submissions on costs).

1. Order 21 of the Consent Orders otherwise dismissed the application.
2. As noted, the Consent Orders included directions in relation to any costs application by the Appellant (being the applicant in the Tribunal proceedings).
3. Pursuant to the Consent Orders dated 25 September 2024 and further directions dated 10 January 2025 the parties filed in the Tribunal proceedings their submissions and documents on the question of costs.
4. The parties' submissions on costs before the Tribunal were not part of the papers before the Appeal Panel.
5. The Tribunal determined the Appellant's application for costs on the papers. The Tribunal's orders dated 11 February 2025 were as follows:

1. Order pursuant to s 50 of the Civil and Administrative Tribunal Act NSW 2013 dispensing with a hearing.

2. Order that the respondent pay the applicant the costs attributable to his claim for damages for loss of rent, on the ordinary basis, as agreed or assessed.

1. Written reasons were provided with the Costs Decision.
2. As can be noted from Order 2 the Appellant was successful with its costs application for costs associated with the Appellant's claim for damages for loss of rent. Order 2 is not the subject of appeal and remains in place notwithstanding that we propose to uphold the appeal. Although not expressly dealt with by way of a dismissal order for the balance of the claim, the Tribunal in effect refused the Appellant's claim for costs associated with the work order claims. This refusal is the basis of this appeal.

1. The Appeal Panel has considered the following documents and submissions:

(1) The Appellant's Notice of Appeal with attachments filed 4 March 2025;

(2) The Respondent's Reply to the Appeal filed 4 April 2025;

(3) The Appellant's folder filed 18 July 2025 which contained the Appellant's submissions dated 14 July 2025, the affidavit of Robert Angelo Paul Russo sworn 28 March 2024, the affidavit of Robert Angelo Paul Russo sworn 24 July 2024, the expert report of Mr Robert McDonald of R.O.H Contracting Pty Limited dated 20 June 2024 (the ROH Report);

(4) The Respondent's Appeal Book filed 23 July 2025 which contained the Respondent's Reply to Appeal, Respondent's submissions and statement of John Edwards dated 19 June 2024;

(5) The Costs Decision;

(6) The Tribunal application 2024/2605 filed on 20 December 2023 with attachments;

(7) Exhibit RAPR-1 to the affidavit of Robert Angelo Paul Russo sworn 28 March 2024 tendered by the Appellant at the hearing of the appeal;

(8) Case authorities relied on by the parties.

1. The Appeal Panel has also had regard to the parties' representatives' oral submissions made at the hearing of the appeal.

1. An appeal to the Appeal Panel is not an opportunity for an unsuccessful party in the Tribunal below to be given another opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
2. To succeed in an appeal, an appellant must be able to demonstrate either an error by the Tribunal on a question of law which may be argued as of right or if not on an error of law, that permission (leave) to appeal should be granted to bring the appeal: s 80(2)(b) of NCAT Act.
3. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [24]- [40], the Appeal Panel set out the principles concerning questions of law which can be summarised as follows:

(1) Absent leave to appeal, the question of law is the subject matter of the appeal;

(2) The question of law should be articulated with precision;

(3) A question of law means a pure question of law;

(4) A "pure question of law" does not depend on facts not found;

(5) A mixed question of fact and law is not a question of law;

(6) An appeal is "on" any question of law: s 80(2) of the NCAT Act. The question of law must not be hypothetical or arid;

(7) An appeal is against orders and not reasons and therefore, the question of law must be capable of affecting the orders the subject of the appeal.

1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are set out in clause 12(1) of Schedule 4 of the NCAT Act which provides :

(1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because--

(a) the decision of the Tribunal under appeal was not fair and equitable, or

(b) the decision of the Tribunal under appeal was against the weight of evidence, or

(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. The principles surrounding leave to appeal and whether the appeal panel ought exercise its discretion to grant leave, even if one of the bases is established, are set out in the Appeal Panel decision of Collins v Urban [2014] NSWCATAP 17.

1. The Appellant seeks for Order 2 to be set aside and an order for costs be made by the Appeal Panel that the Respondent pay the Appellant's costs of the proceedings on the ordinary basis.
2. The Appellant also seeks costs of the appeal.
3. In Section 5B of the Notice of Appeal the Appellant annexes Annexure A as setting out grounds of appeal based on a question of law. In summary, the Appellant identified the following grounds:

(1) The Tribunal erred in its interpretation of the Consent Orders by assuming that costs could not be awarded on the basis that the proceedings had not been heard to fruition, when it had been fully heard and determined and the Appellant was successful in establishing his claim;

(2) The Tribunal failed to properly exercise its jurisdiction in relation to costs thereby denying the Appellant a rightful costs order.

1. In Section 6B of the Notice of Appeal the Appellant sought leave to appeal on the ground that the Costs Decision was not fair and equitable and that the Costs Decision was against the weight of evidence.
2. In the Appellant's written submissions dated 14 July 2025, three grounds of appeal were set out as follows:

(1) Error 1 - the reasons for the Costs Decision reveal a misunderstanding by the Tribunal of the Appellant's claim and therefore the Tribunal did not understand that the consent outcome was the relief claimed by the Appellant;

(2) Error 2 -the Tribunal in the Costs Decision identified the correct authorities in relation to capitulation but failed to correctly apply the principles set out in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622 (Lai Qin) and Ibrahim v PERI Australia Pty Limited [2013] NSWCA 328;

(3) Error 3 - the Tribunal applied the wrong standard to the exercise of its discretion; by failing to apply rule 38 of the NCAT Rules.

1. At the hearing of the appeal, the Appellant's representative confirmed the Appellant relied on Errors 1, 2 and 3 as set out in the written submissions dated 14 July 2025. We will refer to them as Grounds 1, 2, and 3.

1. In its Reply to the Appeal, the Respondent contends:

(1) The Costs Decision was correct;

(2) The Consent Orders were by consent and therefore there was no Tribunal determination;

(3) The award by the Tribunal of a proportion of the Appellant's costs was a correct application of s 60 of the NCAT Act and the case authorities;

(4) The Costs Decision was neither unfair nor inequitable;

(5) The Costs Decision was not against the weight of evidence as it reflected that there was no real dispute between the parties that the Appellant's units were uninhabitable (hence awarding costs of the damages claimed based on loss of rental income);

(6) There was a genuine dispute between the parties as to the extent of the defects to the common property and the appropriate scope of rectification (the work order claims);

(7) The Tribunal properly found it was unable to accept that the Consent Orders reflected a capitulation by the Respondent and therefore there was no basis under s 60 of the NCAT Act or at general law to award costs in relation to the work order claims.

1. In its written submissions dated 23 July 2025, the Respondent submitted that despite the Tribunal's determination being under s 60 of the NCAT Act and not made under rule 38 of the NCAT Rules, the Tribunal had still correctly applied the authorities with respect to discretion and as such the legal error was not material to the result.
2. The Respondent did not seek to challenge or vary the costs order that was made in favour of the Appellant in relation to the loss of rent claims.

GROUND 1 - FAILURE TO UNDERSTAND THE APPELLANT'S CLAIM AND THEREFORE A FAILURE TO UNDERSTAND THE CONSENT ORDERS

(1) The Tribunal erred by failing to understand that the outcome of the Consent Orders was precisely the relief that was claimed by the Appellant and because the Appellant prevailed in obtaining the relief it sought, the Tribunal was in error to conclude otherwise;

(2) It was the Appellant's case that the water leaks coming from outside the Appellant's lot were due to common property issues, and as such, were the responsibility of the Respondent to investigate, to determine the cause, to engage the appropriate contractors and to undertake the necessary remedial works;

(3) It was the Respondent who filed evidence in the Tribunal proceedings addressing the cause of the leaks and the necessary remedial work, not the Appellant;

(4) It was the Respondent's failure to undertake the tasks of determining the necessary works which caused the Appellant to file the proceedings;

(5) Prayer 3 in the application sought an order for the Respondent to repair, replace or maintain common property to address water ingress into both Lots 117 and 118 and to engage a builder to ascertain the cause and to undertake the works as recommended by the builder;

(6) The Appellant did not know what the cause of the water ingress was, and contended it was the obligation of the Respondent to find out and then rectify the issue;

(7) The Respondent relied on the ROH Report which accepted the source of the water ingress to Lots 117 and 118 to be from the exterior of the building and it was clear from the time of the ROH Report that the works were necessary;

(8) The Appellant did not engage an expert of its own to prepare a report for the Tribunal proceedings as the Respondent had accepted the water leaks arose from defects in the common property;

(9) The result of the Tribunal proceedings was a timetable for the works to rectify the leaks and the consequential damage; which the Respondent finally agreed to the day before the hearing without any explanation as to why the agreement was reached so late;

(10) The Respondent could have agreed to prayer 3 much earlier, even back in January 2024 when the application was filed;

(11) As the Appellant prevailed in obtaining the relief it sought, it was entitled to an order for costs associated with the work order claims;

(12) The Consent Orders were the inevitable result of the proceedings and are in line with prayers 3 and 4 of the application;

(13) The party responsible for the litigation should be liable for the costs of the other party.

(1) Even though the Appellant framed its relief in general terms, the Appellant made a positive case in his evidence in chief for the appropriate scope of works for rectifying the defective common property and for remedying the consequential damage to the lots;

(2) This was apparent from paragraph 39 of the Appellant's affidavit dated 28 March 2024 in which the Appellant referred to the quote from Multifix Group Pty Limited, a remedial builder;

(3) This quote was for $77,990 for Lot 117 and a similar amount for Lot 118; the quote was subsequently increased to $125,000 for each unit [para 39 of the Appellant's affidavit sworn 28 March 2024];

(4) These quotes (signed by Mr Cvetanovski) expressed expert opinion identifying likely and possible defects in the common property and proposed works to address the defects and to rectify the consequential damage;

(5) The Appellant was making a case as to the scope of any work orders that the Tribunal might make and the appropriate amount of damages it might award in respect of damaged lot property;

(6) The Respondent disagreed with the opinions set out in Mr Cvetanovski's quotes and retained Mr McDonald to prepare the ROH Report; the differences in opinion were set out in the reasons of the Tribunal at [20] and [21];

(7) There was a genuine dispute between the parties on the Appellant's claim in relation to the common property defects and lot property damage.

1. The Respondent submitted that this ground was an assertion of error on a question of mixed fact and law and therefore it is not on a question of law within the meaning of s 80(2)(b) of the NCAT Act and leave must be granted.

GROUND 2 - FAILURE TO APPLY THE RELEVANT AUTHORITIES CORRECTLY

(1) That the Tribunal has erred in its application of the legal principles established in the authorities of Lai Qin and Ibrahim;

(2) Even when there had been no hearing, it was well accepted that if the court was satisfied that one party had effectively surrendered or capitulated it should pay the costs of the successful party (ONE.TEL v Deputy Commissioner of Taxation 92000 [2000] FCA 270; 101 FCR 548 at [6]);

(3) It is sufficient to demonstrate that the outcome secured sufficiently achieved the party's purpose in bringing the proceedings (Diamond Ace Super Fund Pty Ltd v Rodapa Development Pty Ltd [2020] FCA 1582 at [65] - [67]; Balanggarra Aboriginal Corporation v State of Western Australia [2018] FCA 1538 and Stephens v Sens, in the matter of Vtara Solar Pty Ltd [2020] FCA 1179 at [30].

(1) The Respondent effectively capitulated through its agreement to the Consent Orders;

(2) The Costs Decision should have prioritised the fact that the outcome of the Consent Orders represented complete success in the Appellant's case;

(3) The Tribunal should have given more weight to the nature and purpose of the orders sought by the Appellant in the original Tribunal application which was for the Respondent to identify the source of the water ingress and to rectify it;

(4) The Tribunal should have given more weight to the ROH Report wherein the Respondent's expert stated that the Respondent should not undertake remediation work to Lots 117 and 118;

(5) The Lai Qin principles addressed the situation where there was an intervening event or compromise which rendered a hearing of the dispute unnecessary; this was not a situation where a Respondent simply backed down before the hearing;

(6) In this case, the Appellant directly sought the Respondent to discharge its obligations under s 106(2) of the SSM Act, which it refused to do throughout the litigation, but capitulated in substance on the eve of the hearing;

(7) There was no intervening event which rendered the proceedings moot.

(1) The Appellant has contended that the Tribunal was in error in seeking to apply the Lai Qin principles in circumstances where there was no supervening event or intervention of extraneous circumstances which rendered the dispute unnecessary;

(2) The applicability of the Lai Qin principles is not confined to such cases and McHugh J referred to a spectrum of cases ranging from those in which both parties had acted reasonably, and the dispute was nullified by supervening circumstances to those which the commencement or continuation of the litigation could squarely be attributed to one party's unmeritorious conduct.

GROUND 3 - INCORRECT APPLICATION OF S 60 OF THE NCAT ACT

38 Costs in Consumer and Commercial Division of the Tribunal

(1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal.

(2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if -

(a) the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under clause 10(2) of Schedule 4 to the Act in relation to the proceedings, or

(b) the amount claimed or in dispute in the proceedings is more than $30,000.

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.

(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.

1. Both parties accepted the proposition that as the proceedings involved a monetary claim in excess of $30,000, rule 38 of the NCAT Rules was the applicable costs regime, not s 60(2) or (3) of the NCAT Act.
2. The Appellant conceded that this issue was less than clear before the Tribunal and the costs application had been made to the Tribunal on the basis of s 60(2) and (3) of the NCAT Act.
3. When specifically asked by the Appeal Panel if the Tribunal might have made a different costs decision if the costs application had been decided under rule 38 and not s 60, Counsel for the Appellant was unable to confirm if this would have been the case; and said he did not know what the Tribunal member might have thought in relation to a determination under rule 38.
4. Counsel for the Respondent submitted that the Tribunal correctly applied the general law in relation to costs where matters were finalised without a hearing and therefore the legal error (namely the application of s 60 as opposed to rule 38) was not material to the result on costs in relation to the work order claims.

1. As Ground 1 is a mixed question of law and fact, it is not a pure question of law and the Appellant requires leave on a basis set out in Clause 12(1) of Schedule 4 of the NCAT Act (Unique v Cusumano ).
2. We are of the view that both Grounds 2 and 3 raise questions of law and are interconnected. We will deal with them first and together.
3. At [13] to [15] the Tribunal notes the Appellant's submissions regarding the matters set out in s 60(3) of the NCAT Act. In [13] the Tribunal notes:

The applicant also submitted that the respondent had in effect surrendered by agreeing to the Consent Orders and that in the circumstances of these proceedings that conduct satisfied s 60(3)(g).

In respect of s 60(3)(g) the applicant contends that its case was "inevitably going to succeed (applicant's submissions, para 52). The applicant points to the content of the Consent Orders, which include orders for damages and for rectification of common property, including waterproofing in the bathrooms of the applicant's lots.

As the applicant correctly pointed out, in The Owners-Strata Plan 5319 v Price [2020]NSWCATAP 245 the Appeal Panel said at [41]:

"...a party's ultimate consent to the orders sought, without a hearing on the merits, can amount to special circumstances".

Pursuant to s 60(1) of the CAT Act, each party to proceedings in the Tribunal is to pay their own costs. That is the starting position.

The Tribunal's discretion to award costs can be exercised "only" if the Tribunal is satisfied that there are "special circumstances warranting an award of costs." Th power to exercise the discretion conferred by s 60(2) is not engaged unless the Tribunal is satisfied that there are "special circumstances warranting an award of costs".

1. The essence of the Tribunal's reasoning to refuse the costs application in relation to the work order claims is at paragraphs [30] and [31] of the Costs Decision:

[30] The Consent Orders, insofar as they relate to the repair work that the respondent is to undertake, make detailed provisions as to the obtaining of scopes of work, quotes and selection of contractors. From the orders it is not possible for me to identify with any degree of confidence that the respondent has surrendered. The determination of the scope of the rectification work is a matter that has been postponed. It cannot at this point be determined if applicant's position or the respondent's position has prevailed.

[31] In terms of the applicant's submissions to the effect that had the proceedings been determined on the merits the applicant would have inevitably succeeded, the question is not merely whether the respondent would have been ordered to undertake remediation or repairs of the common property. That is because the areas of dispute, so far as can be identified from the submission and evidence referred to, included the extent of damage to the applicant's lots, the scope of the required rectification, and how the timing and sequencing of rectification work was impacted, including by rectification work required on the balcony of lot 122. The question of costs requires assessing whether the applicant would have succeeded on the matters that were the subject of disputation and, consequently, determining whether the applicant would have succeeded on all the matters which were the subject of dispute and which would have impacted on the framing of the appropriate relief. The partes were in dispute as to what was required in terms of work for the respondent to properly discharge its obligation. However, the Consent Orders, on their face, did not resolve this issue in either parties' unequivocal favour in the sense of vindicating one side's position. From the Consent Orders I cannot conclude that the respondent has conceded on all the issues identified in this paragraph because the scope of the rectification works is yet to be determined.

1. In paragraph [29] the Tribunal refers to the observations in Lai Qui (set out in [16] of the Costs Decision) and the observations of Beazley P in Ibrahim v PERI Australia Pty Ltd [2013] NSWCA 328 at [16] - [18] .
2. Both authorities refer to reasonableness as a criterion for consideration as to whether a costs order should be made when there has been no hearing on the merits. McHugh J held in Lai Qin at [625]:

If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the costs discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases (7).

1. Beazley P in Ibrahim v PERI Australia Pty Ltd held at [16] - [18]:

16. The primary judge, in determining whether a costs order ought to be made in the applicant's favour, on the discontinuance, reviewed the case law including, relevantly, Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585; 44 FCR 194; Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622; ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270; 101 FCR 548; Fordyce v Fordham [2006] NSWCA 274; 67 NSWLR 497; and Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32.

17. Although each of those cases related to different facts, the principles that are to be derived from them, in circumstances where a Court is requested to make a costs order, when proceedings have not been heard to termination include the following: whether a party acted reasonably in commencing the proceedings; whether a party had been successful in obtaining interlocutory relief; whether the party sued had acted reasonably; whether the responding party had acted reasonably in defending the proceedings; whether the proceedings terminated after interlocutory relief had been granted; and further, whether the primary judge was satisfied that the party seeking to terminate the proceedings prior to a full hearing had almost a certain chance of success.

1. In the hearing of the appeal, the Appellant also relied on the decision of Halley J in FCA US LLC v Mahindra Automotive Australia Pty Limited [2021] FCA 1091 at [31-[35] where it was held that there were exceptions to the general principle that a court will not make an order for costs in circumstances where there has been no hearing on the merits (citing Lai Qin).
2. At [33] Halley J held:

First, the Court may make an order for costs in favour of a party notwithstanding that there has been no hearing on the merits in circumstances where one party has had a substantial victory and the other a substantial loss, or there has been a marked difference in the reasonableness of the actions taken by the parties...

Second, where the Court is satisfied that one party has effectively surrendered or capitulated it may also make a costs order in favour of the other party notwithstanding that there has been no determination of the merits of the proceedings...

1. From paragraphs [30] to [33] of the Costs Decision it is clear to us that the Senior Member has made the decision to refuse the Appellant's application for costs in relation to the work order claims for the reason that he was not satisfied that the Respondent had "surrendered" or "conceded on all the issues identified..", because the Consent Orders on their face did not resolve the dispute as to what the scope of works would be.
2. We are of the view that this finding was made in the context of the Senior Member asking the wrong question, namely whether there were "special circumstances" in relation to the work order claims in order to enliven the Tribunal's power to make a costs order under s 60(2).
3. Section 60 requires an applicant for a costs order to satisfy the Tribunal that the Tribunal should exercise its discretion to award costs on the basis that the Tribunal is satisfied that there are special circumstances "warranting an award of costs". The presence of the word "only" in s 60(2) directs the Tribunal to consider whether there are such special circumstances and, if not, an award of costs should not be made.
4. Section 60(3) lists circumstances that the Tribunal may have regard to in determining whether there are special circumstances. None specifically mention cases where the court or tribunal is satisfied that the party seeking costs had almost "a certain chance of success", adopting the phrase used by Beazley P in Ibrahim and followed in Hertslet and there was no determination of the merits.
5. Here the Tribunal engaged in the exercise of construing the Consent Orders insofar as those orders related to the work orders agreed between the parties. The Tribunal found that it was not possible to find that the Consent Orders revealed that the Respondent had surrendered. The Tribunal found that its task was to determine whether the Appellant "would have succeeded on all matters which were the subject of dispute and would have impacted on the framing of the appropriate relief" [31]. This approach would appear to be consistent with the principle described in Ibrahim and in Hertslet. However, it is clear that the Tribunal had in mind that it was required to find that the Consent Orders constituted special circumstances and that therefore the Tribunal's dismissal of the application for costs was in part occasioned by its assessment of whether the Consent Orders revealed something deserving of the description "special circumstances warranting an award of costs".
6. It may be that if the Tribunal had applied rule 38 and acknowledged that there was no need to find special circumstances, the outcome (ie. dismissal of the Appellant's application for costs) would have been the same. That is to say the application for costs may have been dismissed even if the Tribunal had approached the application under rule 38. However, that is an outcome that we are not confident in saying would have occurred. In our view the Appellant was entitled to have the application considered on the basis that there was no requirement to establish the presence of special circumstances warranting an award of costs.
7. Our opinion that the Tribunal erred in introducing the requirement to find special circumstances is supported by the Tribunal's findings with respect to the costs awarded for the loss of rent claims. In [40], where the Senior Member deals with the costs attributable to loss of rent claims the Senior Member finds:

(1) That the Respondent effectively surrendered on this issue;

(2) Alternatively, the Tribunal was satisfied that the Appellant would have inevitably succeeded on that head of loss;

(3) These circumstances were special circumstances within s 60(3)(c) and 60(3)(g) of the NCAT Act;

(4) The Appellant should not have been required to incur the costs in respect of this issue;

(5) In accordance with the discretion under s 60, the Tribunal awards costs in respect of the loss of rent issue.

1. By considering the authorities of Lai Qin and Ibrahim v PERI Australia Pty Limited in the context of whether there were special circumstances and not in the context of determining the costs application in accordance with rule 38, we are satisfied that the Senior Member made an error on a question of law. Ground 3 is upheld. Having allowed the appeal on the basis of an error on a question of law, there is no need for us to consider the other grounds.
2. Although the Appeal Panel may redetermine the costs application (s 81(1)(d) of the NCAT Act), we do not consider it appropriate to do so.
3. The parties' written costs submissions before the Tribunal were not included in the documents filed in the appeal. Notwithstanding oral submissions at the hearing of the appeal, written submissions on the question of costs with references to the evidence filed in the proceedings before the Tribunal would be of considerable assistance to determine the costs application for the work order claims.
4. We consider that the most appropriate course is for the question of costs in relation to the work order claims to be remitted to the Tribunal for re-determination. We also consider that an in person hearing would be preferred. For a determination of costs where there has been no hearing on the merits, it is likely that the decision maker is not as familiar with the pleadings and evidence which would otherwise be the case if there had been a contested hearing. It follows that the decision maker may be better assisted with an in person hearing. The Tribunal may determine its own procedure in this regard.
5. The proceedings may be remitted to Senior Member Alkadamani to decide the question of costs of the work order claims according to rule 38 and relevant authorities.
6. The proceedings on remittal ought be listed for a directions hearing for any further appropriate directions.
7. The Appeal Panel orders:

(1) The appeal is allowed.

(2) The Appellant's application for costs of proceedings 2024/2605 in relation to the work order claims being the issues for which the Tribunal declined to order that the Appellant's costs be paid by the Respondent is to be remitted to Senior Member Alkadamani for re-determination according to law.

(3) Any application for costs of the appeal and documents in support are to be filed and served within 14 days of the date of these orders.

(4) Any reply to the application for costs and documents in support are to be filed and served 14 days later.

(5) The parties are to address in their submissions on costs of the appeal whether the question of costs can be determined on the papers in accordance with s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).

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.