Sadlo v Australian Retirement Holdings Pty Ltd

Issues

1. The issues that arise on appeal are: 1. On what grounds may Mr Sadlo appeal from a costs decision made in proceedings under the Retirement Villages Act? 2. Has Mr Sadlo sought leave to appeal on grounds other than a question of law? 3. Was the appeal lodged out of time and, if so, should time be extended? 4. What reasons did the Tribunal give for the costs decision and how should those reasons be understood? 5. Do any of Mr Sadlo's grounds of appeal identify questions of law and, if so, did the Tribunal make any legal errors? That issue raises the following sub-issues: 1. is a decision under s 60(2) of the NCAT Act a discretionary decision attracting the principles in House v King? 2. Has Mr Sadlo identified any House v King type errors? 1. If not, should the Appeal Panel give Mr Sadlo permission to appeal because he may have suffered a substantial miscarriage of justice? 2. Should either party pay the costs of the other party on appeal?

On what grounds may Mr Sadlo appeal from a costs decision made in proceedings under the Retirement Villages Act?

1. A costs decision is defined in s 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), as an "ancillary decision". Mr Sadlo has the right to appeal from an ancillary decision on any question of law: NCAT Act, s 80(2)(b). He cannot appeal on any other ground unless the Appeal Panel gives him permission to do so: NCAT Act, s 80(2)(b). Because the Costs Decision was made in the Consumer and Commercial Division of the Tribunal, the Appeal Panel can only give permission if it is satisfied that Mr Sadlo "may have suffered a substantial miscarriage of justice" for any of the reasons listed in cl 12(1) of Sch 4 to the NCAT Act. Those reasons are that: (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). (See NCAT Act, Sch 4, Part 6, cl 12 and definition of "Division decision" and "Division function" in NCAT Act, Sch 4, cl 1.)

Has Mr Sadlo sought leave to appeal on grounds other than a question of law?

1. When Mr Sadlo filed the Notice of Appeal on 17 March 2020, he ticked the box asking for permission, or 'leave' to appeal from the costs decision on a ground other than a question of law: NCAT Act, s 80(2). In Mr Sadlo's written submissions at [54], he wrote: As explained, it is Mr Sadlo's principal submission that the errors in the costs decisions were legal errors, but if that is wrong he seeks leave to challenge the submission (sic decision?) upon the grounds already advanced. It is respectfully submitted that there is a powerful basis for granting that leave.
2. The respondent submitted that Mr Sadlo has not attempted to develop or articulate any submission based on him having suffered a "substantial miscarriage of justice" for any of the reasons listed in cl 12(a), (b) or (c) of Sch 4 to the NCAT Act. For that reason, the Appeal Panel should not treat the appeal as including an application for leave under that provision. Mr Sadlo clarified his position in submissions in reply: Even though Mr Sadlo maintains that he has pinpointed errors of law in the decision of the General Member, if it is necessary to do so, then he seeks leave to have the same errors corrected upon the basis that they constitute a serious injustice.
3. Not satisfied with this response, the respondent wrote to the Tribunal on 22 May 2020, after the timetable for submissions had closed. In that letter, the respondentoperator wrote that "[N]owhere in the Appellant's submissions in chief, or in reply, is there any submission engaging with any of the 'leave grounds' in Sch 4, Part 5, cl 12." The respondent added, [T]here is nothing of substance to which to respond."
4. Mr Sadlo has appealed from the Costs Decision on a question of law. He has also asked that, if the appeal is not upheld on a question of law, permission be given for him to appeal on a ground other than a question of law. He relies on the same grounds as constituting a substantial miscarriage of justice. If necessary, we will decide whether to give Mr Sadlo permission to appeal on that basis.

Was the appeal lodged out of time and, if so, should time be extended?

1. Mr Sadlo did not lodge the appeal within the prescribed 14-day time frame but we have decided to extend the time for lodgement. The respondent did not oppose an extension of time.
2. The default rule is that an internal appeal must be lodged within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later): Civil and Administrative Tribunal Rules 2014, (NCAT Rules) rule 25(4)(c). That rule does not apply "in the case of an internal appeal against a decision made in residential proceedings": NCAT Rules, r 25(4)(b). (Emphasis added.) "Residential proceedings" is defined in rule 3 to include "proceedings allocated to the Consumer and Commercial Division of the Tribunal arising under the Retirement Villages Act 1999". The issue is whether the costs decision is a decision made in proceedings allocated to the Consumer and Commercial Division arising under the Retirement Villages Act 1999.
3. A decision concerning the awarding of costs in proceedings is an "ancillary decision": NCAT Act, s 4. The word proceeding is not defined in the legislation. We adopt the interpretation given to that term in Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [37]: . . . "proceedings" refers to the process set in motion, or commenced, by lodging an application or notice of appeal. That process includes the steps taken by the Tribunal to hear and determine whether to grant the relief sought in the application or notice of appeal, as well as any interlocutory or ancillary steps.
4. It follows that the costs decision was made in proceedings allocated to the Consumer and Commercial Division "arising under the Retirement Villages Act 1999" and that the 14-day time limit applies.
5. Mr Sadlo was given reasons for the Costs Decision on 18 February 2020. He lodged the appeal 28 days later on 17 March 2020. The appeal was not lodged within time. The Tribunal may grant an extension under section 41 of the NCAT Act, even if the relevant period of time has expired. Mr Sadlo submitted that the delay was not his fault. He sought pro bono assistance and was told he had 28 days to appeal from the costs decision. On that basis, the respondent did not oppose an extension of time.
6. The principles relevant to granting an extension of time were summarised in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. The length of the delay in this case is relatively short and the explanation for the delay is persuasive. Although, for the reasons we give below, the appeal lacks merit, there is no prejudice to the respondent in extending the time. For those reasons, we have decided to extend the time for Mr Sadlo to lodge the appeal to 17 March 2020.

What reasons did the Tribunal give for the costs decision and how should those reasons be understood?

1. The Tribunal identified s 60 of the NCAT Act as the provision governing the awarding of costs in these proceedings. The Tribunal noted that, as the amount claimed or in dispute in the substantive proceedings was not more than $30,000, s 60 applies: Civil and Administrative Tribunal Rules 2014, rule 38.
2. Section 60 provides that: 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. (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.
3. At [24] - [25] of the Costs Decision, the Tribunal set out the issue in the principal proceedings which was that the applicant "must establish that the air-conditioning unit and those other items for which he seeks compensation were the property of the Retirement Village operator." The Tribunal went on: 24. …He clearly submitted that the ducted air conditioning and other enhancements referred to in the agreement back in September 2010 were not variations for which he was responsible by virtue of the lease and the Act. 25. The Purchase Settlement Sheet, shown as Annexure D to the respondent's material clearly indicated that on 25 November 2010 the applicant, through his solicitors, paid the village operator the appropriate balance of $331,200.00 and at the same time paid a bank cheque to A & N Bbuilding Services Pty Llimited in a sum of $22,5000.00 which related to the variations. It is clear the variation schedule was signed by the applicant and his wife in September 2010. The variation included a sum of $10,000.00 for the air conditioner.
4. The Tribunal added at [26], that: 26. There is no doubt the applicant and his wife signed the Purchase Variation Form and paid over a separate cheque for items, which included the air conditioner, at the time of settlement of the property. …
5. The Tribunal then referred to its findings at [37], [38] and [39] of the Decision and concluded that those findings "clearly establish that the orders being sought by the applicant in the application were at the very least misconceived and/or lacking in substance within the meaning of s 60(3)(e)." We will call this finding "the finding that the proceedings were misconceived or lacking in substance."
6. The Tribunal then referred to previous proceedings in the Tribunal where Mr Sadlo had assisted neighbours in presenting similar arguments to those presented in these proceedings. In the first matter (Hopkins v Australian Retirement Holdings Pty Ltd RV 15/04033, 21 July 2015) the Tribunal was not satisfied that the applicants had carried out any repairs or maintenance to the air-conditioner. In the second matter (Hopkins v Australian Retirement Holdings Pty Ltd RV 15/54129 10 December 2015) the Tribunal dismissed the applicants' application for the operator to reimburse them for the cost of replacing the compressor in the air conditioner because it was not an item of capital.
7. At [26] of the Costs Decision, the Tribunal stated that Mr Sadlo "knew or ought to have been fully familiar with the decisions made in those matters and the reasons given" for those decisions. Nevertheless, "he failed to bring those matters to the attention of the Tribunal." The Tribunal criticised Mr Sadlo for relying only on earlier decisions involving the same retirement village (Bedding v Viceroy Gilead Pty Limited (RV10/35928, RV 10/35927, RV 10/35920) which were decided in favour of the residents. We will call this finding "the findings about previous proceedings." Taking into account those findings, the Tribunal concluded at [26] that: . . .it is arguable that the present proceedings constituted an abuse of process or vexatious litigation although it is not necessary to arrive at that conclusion in order to consider the special circumstances which could give rise to an order for costs under s 60 of the Act. (Emphasis added.)
8. Finally, the Tribunal addressed what it considered the "most significant aspect of the respondent's claim." On 2 April 2019, the respondent wrote to Mr Sadlo providing a detailed analysis of the merits of his claim and advising that if he did not withdraw the application, the respondent would apply for costs. The Tribunal found at [27], that the letter "should have brought clearly to the applicant's mind the difficulties he may have encountered if he chose to proceed." We will call this finding, "the finding about the warning letter".
9. The Tribunal expressed its overall conclusion at [28]: These matters together constitute sufficient special circumstances to warrant an order for costs being made on a party/party basis from a reasonable time after the letter was actually received by the applicant.
10. The Tribunal may determine by whom and to what extent costs are to be paid: NCAT Act, s 60(4). The Tribunal rejected the respondent's submission that costs of $56,696.72 should be paid on an indemnity basis. Instead, the Tribunal estimated the party/party costs to be $25,000. By estimating those costs, the Tribunal avoided the parties having to have the costs assessed under the Legal Profession Uniform Law Application Act 2014.
11. As there was some disagreement between the parties as to the considerations on which the Tribunal relied in making the costs order, we need to clarify what we understand to be the reasons for the Tribunal's decision.
12. We have identified the primary findings of fact as being: 1. the finding that the proceedings were misconceived or lacking in substance; 2. the findings about previous proceedings; and 3. the finding about the warning letter.
13. In relation to the findings about previous proceedings, the respondent submitted that the Tribunal did not take that conduct into account in determining whether there were special circumstances warranting an order for costs. Mr Sadlo disagrees. He asks rhetorically why the Tribunal referred to that conduct if it was not a consideration that it took into account.
14. We repeat below the words the Tribunal used at [26]: . . .it is arguable that the present proceedings constituted an abuse of process or vexatious litigation although it is not necessary to arrive at that conclusion in order to consider the special circumstances which could give rise to an order for costs under s 60 of the Act.
15. On our reading of the Tribunal's decision, it did not conclude that the findings about previous proceedings constituted an abuse of process or vexatious litigation. However, the Tribunal did take the findings about previous proceedings into account in determining whether there were special circumstances warranting an award of costs. The Tribunal did not identify whether this finding came within any of the matters listed in s 60(3) but we note that the Tribunal may have regard in determining whether there are special circumstances warranting an award of costs under s 60(3) to "(g) any other matter that the Tribunal considers relevant". Whether the Tribunal erred in taking this finding into account is an issue we will consider later in these reasons.
16. In relation to the finding about the warning letter, the Tribunal attributed the most significance to that matter. Whether the Tribunal erred in taking this finding into account is in an issue we will consider later in these reasons.

Do any of Mr Sadlo's grounds of appeal identify questions of law and, if so, did the Tribunal make any legal errors?

Summary of grounds and issues

1. Mr Sadlo characterised the Tribunal's Costs Decision under s 60 of the NCAT Act, as the exercise of a discretion. He submitted that, in accordance with the well-known passage in House v The King (1936) 55 CLR 499 (Dixon, Evatt and McTiernan JJ) at 505, for such a decision to be set aside for legal error, "it must appear that some error has been made in exercising the discretion". The plurality went on to explain what is meant by legal error: If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
2. The plurality also made the point at 504 - 505 that, " [I]t is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course."
3. Several questions arise from Mr Sadlo's submission. First, is a decision under s 60(2) of the NCAT Act a discretionary decision attracting the principles in House v King? Secondly, has Mr Sadlo identified any House v King type errors? He submitted that the Tribunal had: 1. erred in the reasons given for the costs decision; 2. failed to take into account relevant and material considerations; 3. takenook into account some irrelevant considerations; and 4. relied on a material factual error.
4. Finally, if those are not House v King type errors, or the Tribunal has not made any of those errors, are we satisfied that Mr Sadlo "may have suffered a substantial miscarriage of justice" for any of the reasons listed in cl 12(1) of Sch 4 to the NCAT Act? If so, we may give him permission to appeal on grounds other than a question of law.

Is a decision under s 60 of the NCAT Act a discretionary decision attracting the principles in House v King?

1. The general rule set out in s 60, is that each party is to pay their own costs. The Tribunal may award costs "only if it is satisfied that there are special circumstances warranting an award of costs." Section 60(2) lists the circumstances to which the Tribunal "may have regard" when determining whether there are special circumstances warranting an award of costs.
2. The Tribunal must first identify and make factual findings about the circumstances which are said to be "special". In doing so, the Tribunal "may have regard to" the circumstances listed in s 60(3) of the NCAT Act which includes "any other matter that the Tribunal considers relevant." In this case the Tribunal made three findings: the finding that the proceedings were misconceived or lacking in substance; the findings about previous proceedings; and the finding about the warning letter. Next, the Tribunal must determine whether those circumstances are "special circumstances warranting an award of costs".
3. Courts have distinguished between two kinds of standards on appellate review from a judicial discretion: the "deferential standard" articulated in House v The King and the "correctness standard" articulated in Warren v Coombes [1979] 142 CLR 531; [1979] HCA 3: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 Gageler J at [43].
4. The deferential standard applies when the "application of the statutory criterion calls for 'value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right'": Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 Gageler J at [43] (Footnotes deleted.) The "correctness standard" applies where "the conclusion requires a unique outcome." For example, where the statutory test was whether a corporation had engaged in "conduct that is unconscionable" the High Court held that, on proven facts, a person has either engaged in such conduct or has not: Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 214 CLR [2003] HCA 18. In those circumstances, the "correctness standard" applied and the appellate body may correct any error the original decision maker has made.
5. For decisions made under s 60(2) of the NCAT Act, the determination as to whether special circumstances exist warranting an award of costs attracts the deferential standard of appellate review.

Has Mr Sadlo identified any House v King type errors?

Failure to consider the intent of the legislation

1. Mr Sadlo submitted that the Tribunal did not consider the intent of the legislation which is that the general rule is that each party pays their own costs. In our view, that is not an accurate characterisation of the Tribunal's decision. The Tribunal set out s 60 of the NCAT Act and understood that the general rule is that each party is to pay its own costs. As the premise on which this ground of appeal relies has not been made out, we need not give it any further consideration.

Failure to consider each of the matters in s 60(3) of the NCAT Act

1. Mr Sadlo submitted that before making an order displacing the general rule that each party pay their own costs, the Tribunal should have considered each of the matters listed in s 60(3) of the NCAT Act. The failure to do so was said to be significant because those statutory criteria can "cut both ways". When each of those matters is taken into account, they weigh heavily against making a costs order.
2. In our view, that submission is not correct because, rather than being a discretion in the broad sense, s 60(2) of the NCAT Act requires the Tribunal to make a value judgment. Section s 60(3) lists matters to which the Tribunal "may have regard" in determining whether there are special circumstances warranting an award of costs. Depending on the primary findings of fact, the Tribunal may be satisfied on the basis of one or more of the circumstances listed in s 60(3), or on the basis of "any other matter that the Tribunal considers relevant," that special circumstances exist which warrant a costs order. The matters listed in s 60(3) are not relevant considerations which the Tribunal is bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24.

Proceedings were not misconceived or lacking in substance

1. Mr Sadlo submitted that the Tribunal's finding that the proceedings were misconceived and/or lacking in substance is neither fair nor correct. He says that his arguments were not without merit. Rather, it was strongly arguable that the principal decision was incorrect. Mr Sadlo then sets out his arguments on this point.
2. This ground of appeal relates to the first step in the process of decision making under s 60(2) - making findings about the circumstance which are said to be "special". As we have said, the Tribunal referred to its findings in the Decision at [37], [38] and [39] and concluded that those findings "clearly establish that the orders being sought by the applicant in the application were at the very least misconceived and/or lacking in substance within the meaning of s 60(3)(e)." The Tribunal did not attempt to define those terms but, in a similar context, the Court of Appeal held in The Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 at [45] that: It would be inappropriate, given the extraordinary powers triggered by a finding that an application is lacking in substance, to attribute to the phrase a meaning other than "not reasonably arguable". That is, a meaning not dissimilar to "frivolous, vexatious, misconceived", the words which precede the phrase.
3. There was evidence to support the Tribunal's finding, so there is no 'mistake of fact' of the House v The King type. Disagreement with the Tribunal's finding is not a House v The King error.

The finding about previous proceedings

1. As outlined above, the Tribunal stated at [26], that Mr Sadlo "knew or ought to have been fully familiar with the decisions made in those (previous) matters and the reasons given" for those decisions. Nevertheless, "he failed to bring those matters to the attention of the Tribunal." The Tribunal regarded this matter as one of the circumstances warranting an award of costs.
2. Mr Sadlo submitted that the Tribunal "seems to suggest that this demonstrated a lack of candour on his part." He said that was unfair and unwarranted because the duties cast on lawyers hardly apply to him. Mr Sadlo added that, in any case, the Tribunal was fully apprised of those decisions so it did not matter. Mr Sadlo also submitted that the failure to bring those proceedings to the attention of the Tribunal was an irrelevant consideration.
3. The Tribunal did not suggest that Mr Sadlo breached any duty he owed to the Tribunal. But we agree that the Tribunal drew the inference that Mr Sadlo's conduct lacked candour. He had been involved in the previous proceedings where fellow residents Beryl and Neville Hopkins were the applicants. The Tribunal had found against them in 2015 on the basis of the contractual arrangements in that case. The fact that Mr Sadlo did not mention these cases to the Tribunal in the current proceedings was, in our view, a relevant matter about which the Tribunal was entitled to have regard: NCAT Act, s 60(3)(g). The Tribunal's reliance on that matter does not involve any House v The King type error.

The finding about the warning letter

1. The Tribunal found, in effect, that Mr Sadlo should have known his claim lacked merit because the respondent wrote a letter telling him that was the case. Mr Sadlo described that finding as 'problematic' because leave is required for a party to be represented by a lawyer in these kinds of proceedings. The conduct of a party who has legal representation threatening the other party with legal costs might be seen as intimidation. Such a letter should not be sufficient to displace the general rule that each party pays their own costs.
2. The fact that Mr Sadlo received the warning letter is, in our view, a relevant matter about which the Tribunal was entitled to have regard: NCAT Act, s 60(3)(g). The weight the Tribunal gave to that matter does not involve any House v The King type error.

Alleged errors in the exercise of the discretion

1. The grounds of appeal which relate to the exercise of the Tribunal's discretion to award costs were that, in the leading case (Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81), the Court of Appeal made an order for costs because the conduct of the party had been "grossly unreasonable" and inflicted a "serious unfairness" on the other party. The Tribunal did not characterise Mr Sadlo's conduct to reach that level of seriousness in this case.
2. It is not necessary for the Tribunal to find that Mr Sadlo's conduct was "grossly unreasonable" or that he has inflicted "serious unfairness" before making and order for costs. At [55] and [60], the Court of Appeal held that: 55 While determination of costs is a discretionary matter and moreover a matter of practice and procedure, as the Tribunal itself recognised, unreasonable conduct that is out of the ordinary and conduct which is grossly unreasonable can attract exercise of the Tribunal's power under s88 to award costs. 60 . . . For this purpose, it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional. While a finding of "serious unfairness" is not prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration.
3. There was no error in the way the Tribunal exercised its discretion and this ground of appeal is not made out.

Should the Appeal Panel give Mr Sadlo permission to appeal because he may have suffered a substantial miscarriage of justice?

1. We are not satisfied that Mr Sadlo may have suffered a substantial miscarriage of justice because the decision was "against the weight of the evidence" or was not "fair and equitable". That would require the Appeal Panel to be satisfied that Mr Sadlo may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved because of one or more of the circumstances in cl 12(1)(a), (b) or (c) of Sch 4. The onus is on Mr Sadlo to explain what hisits case would have been and show that it was fairly arguable: Collins v Urban [2014] NSWCATAP 17 at [79].

Should either party pay the costs of the other party on appeal?

1. The respondent applied for Mr Sadlo to pay its costs on appeal to be fixed in a sum determined by the Tribunal. We make directions for the filing and service of submissions on costs below.

Orders 1. The time for lodging the appeal is extended to 17 March 2020. 2. Leave is refused for Mr Sadlo to appeal on grounds other than a question of law. 3. The appeal is dismissed. 4. If either party wishes to apply for costs on appeal, they should give written submissions to the Tribunal and the other party within 21 days of the date of these reasons. 5. The other party should give written submissions in reply to the Tribunal and the other party within a further 21 days. 6. In their submissions, the parties should advise the Tribunal of their views as to whether the Tribunal should make an order dispensing with a hearing under s 50 of the Civil and Administrative Tribunal Act 2013.

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

Amendments 07 August 2020 - Typos corrected 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: 07 August 2020