Shafei v Cervello [2026] NSWCATAP 104;

(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.

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.

1. Rules 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) provide exceptions to the rule laid down in s 60. Neither party suggested that those exceptions were applicable in this case.

1. In their Application for Miscellaneous Matters the respondents submitted that there are special circumstances in this case and that there should be an order for costs in their favour. The respondents submitted that the following matters constitute special circumstances in this case:

"• The Respondents pursued an appeal that was dismissed;

• The appeal caused us to incur expenses and hardship that are disproportionate to the nature of the dispute;

• Our single-income household and the substantial childcare arrangements required demonstrate clear financial and personal impact;

• It is in the interests of justice that we be compensated for costs reasonably incurred as a direct result of the unsuccessful appeal."

1. In the further submissions of 2 December 2025 the respondents submitted that special circumstances justifying a costs order existed because:

"• The Respondents commenced an appeal that ultimately had no reasonable prospects of success and the Tribunal dismissed the appeal.

• Their appeal resulted in unnecessary additional financial burden on my family. We are a single- income household, and I was required to take unpaid time off work to attend the hearing.

• I also incurred out-of-pocket expenses preparing for the appeal, including printing, preparing evidence bundles, and associated administrative costs.

• Additionally, we had to seek assistance from family members who live three hours away to care for our infant children during the hearing, which created further personal and financial strain."

1. The respondents identified the costs they sought to recover as::

"- Printing all documents again and providing copies to the Appellants, NCAT and ourselves for the hearing. Express post cost, Ink, folders, paper x 2 bundles, plastic sleeves totalling $236.75

- Wages lost $438.13 for the day

- Parking $20.00

Total lost $694.88"

1. The appellants submitted that the respondents have not established the existence of special circumstances. They submitted:

"We submit that no special circumstances exist to justify a costs order against us.

Our appeal addressed only one disputed item, as we had been advised at the initial Tribunal hearing that we were entitled to dispute any item we considered incorrect. We paid the required $519 filing fee accordingly.

From the outset, we attempted to negotiate with the tenants. However, they declined all reasonable offers, insisted on escalating matters to NCAT, and their actions resulted in additional and unnecessary expense. Our total hardship attributable to this dispute amounts to $11940.74.

The tenants' choice to operate as a single-income household is a personal decision and unrelated to us as landlords."

1. The appellants also submitted that the costs claimed by the respondents for printing were unreasonable, as they had reproduced the entire bundle of documents tendered at the original hearing, even though the appellants' appeal concerned only a single disputed item. The appellants also submitted that the respondents' claims for lost wages were excessive.

1. Because s 60 of the NCAT Act applies in this case, I must find special circumstances before I may make an award of costs.
2. "Special circumstances" do not have to be "extraordinary or exceptional", it suffices if they are "out of the ordinary": Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [60].
3. I turn to consider the matters relied upon by the respondents.

1. The respondents' submission that the dismissal of the appeal constitutes special circumstances does not acknowledge that, as is suggested by ss 60(3)(c), (d) and (e), the mere fact that a claim brought to the Tribunal fails does not establish special circumstances. Paragraphs 60(3)(c) and (e) indicate that special circumstances may be established where a claim brought to the Tribunal had "no tenable basis in fact or law" or was "otherwise misconceived or lacking in substance".
2. In James v Department of Justice (Corrective Services NSW) (No 2) [2022] NSWCATAP 216 (James (No 2), at [13]-[14], the Appeal Panel addressed a submission to similar effect:

"13 The respondent's submissions in this regard amounted, ultimately, to no more than the proposition that, the appeal having failed, it was thereby shown to have no tenable basis.

14 Section 60 (3) (c) requires more than this. As the Appeal Panel held in DYH v Public Guardian (No 3) [2022] NSWCATAP 34 at [17] - [19]:

'17 The power to award costs in s 60 of the NCAT Act is to be understood in the context of the Act as a whole. One of the objects of the NCAT Act is "to ensure that the Tribunal is accessible and responsive to the needs of all of its users" (NCAT Act, s 3). A large proportion of its users are not legally trained and the general rule (which is modified for the Administrative and Equal Opportunity Division) is that a party has the carriage of the party's own case and is not entitled to be represented by any person, unless the Tribunal grants leave (NCAT Act, s 45(1); Sch 3, cl 9). The Tribunal is also obliged to ensure that the parties understand the nature of the proceedings and, if requested to do so, explain procedural matters to the parties (NCAT Act, s 38(5)).

18 The general rule set out in s 60(1) of the NCAT Act, that each party pay the party's own costs, was "designed to promote access to justice generally and to minimise the overall level of costs in tribunal proceedings as far as is practicable" (Choi v University of Technology Sydney [2020] NSWCATAP 18 at [41], citing Stonnington City Council v Blue Emporium Pty Ltd [2004] VCAT 1441 at [13]). The concern with access to justice, evinced in s 60(1), indicates that the Tribunal should not award costs too readily on the basis that one party's claim was stronger than the other party's claim (see NCAT Act, s 60(3)(c)). The relative strengths of the parties' claims is one factor to be taken into account, but a finding that a party's claim is weak does not necessarily mean that there are special circumstances warranting an award of costs (see Choi v University of Technology Sydney [2020] NSWCATAP 18 at [45]).

19 In this context, we consider that the power to award costs is to be exercised with some tolerance for self-represented litigants who do not understand legal concepts. That includes a lack of understanding of the rules governing the admission of fresh evidence and the question of what constitutes error for the purposes of an appeal. That approach is consistent with the principle that the discretion to award costs is to be exercised judicially "having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs" (Feng v OzWood (Australia) Pty Ltd [2020] NSWCATAP 42 at [8]).'"

1. The fact that the appeal has failed equally does not establish that it was misconceived or lacking in substance. As the Appeal Panel held in James (No 2) at [24]-[26]:

"24 In Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135 at [44] the Appeal Panel held that:

'44 A finding that a claim is "not proved on the balance of probabilities" is not the same as a finding that a claim is "not tenable in fact or law". They are different concepts. The expression "no tenable basis in fact or law" relates to the common law tests developed and applied in Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125. For a claim to have no tenable basis in fact or law it must be so obviously untenable that it cannot possibly succeed: General Steel at 130. "Manifestly groundless" or "clearly untenable" are equivalent expressions. In our view, for the purpose of s 60(3)(c), it matters not whether a conclusion that a claim has no tenable basis in fact or law is reached in connection with an application for summary dismissal or after a full hearing on the merits.'

25 In that case, at [50], the Appeal Panel adopted the statement of Ipp JA in The Owners Corporation of Strata Plan 4521 v Zouk & Anor [2007] NSWCA 231 at [45] that 'lacking in substance' means '"not reasonably arguable". That is, a meaning not dissimilar to "frivolous, vexatious, misconceived"'.

26 We do not consider that the appeal could properly be described as frivolous, vexatious, misconceived or lacking in substance in the sense outlined by the Appeal Panel in Zucker v Burbank Montague Pty Ltd. The grounds of appeal were not established, and it may fairly be said that the appeal had weak prospects of success. However, as the Appeal Panel stated in DYH v Public Guardian (No 3) [2022] NSWCATAP 34, at [18], the concern with access to justice evinced in s 60 (1) indicates that the Tribunal should not award costs too readily on the basis that one party's claim was stronger than the other party's claim, and a finding that a party's claim is weak does not necessarily mean that there are special circumstances warranting an award of costs."

1. I am not persuaded that the appeal had no tenable basis in fact or law or was misconceived or lacking in substance.

1. The fact that a party to proceedings in the Tribunal has incurred expenses and lost wages or other income in prosecuting or responding to a claim is not a circumstance that is out of the ordinary. It does not, without more constitute special circumstances. The effect of s 60 is that, in the ordinary case, the parties to proceedings in the Tribunal (or the Appeal Panel) are expected to bear the expenses incurred in the course of the proceedings.
2. I note that there is some substance in the appellants' submission that it was not necessary for the respondents to incur the cost of reproducing the entirety of the evidence tendered at first instance. As noted above, the appeal was limited to the appellants' challenge to the award of compensation for disappointment. The onus lay upon the appellants to establish error by the Tribunal, or the foundation for the grant of leave to appeal, if the appellants sought to appeal on grounds other than a question of law.
3. The material filed by the appellants in support of their appeal was limited. It did not require the respondents to file substantial material in response. It certainly did not require the respondents to file the volume of material they did file. By way of example, I note that the bundle filed by the respondents included the entire incoming condition report, of over 150 pages. Nothing in the appellants' submissions in respect of the appeal required reference to the incoming condition report. Nor did the respondents' submissions refer to it.
4. I also note that the respondents filed with their written submissions a bundle of documents which had not been before the Tribunal at first instance. Those documents were entirely irrelevant to the sole issue raised by the appeal.
5. It is also important to note that, even where special circumstances are present and a party obtains an order for the payment of their costs of proceedings, they cannot recover, as costs of the proceedings, expenses incurred or wages foregone in relation to their attendance at the hearing: Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41 at [13]- [19].

1. For the foregoing reasons, I am not persuaded that there were special circumstances warranting an award of costs in relation to the appeal, and the respondents' application for costs is dismissed.

(1) Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing on the question of costs is dispensed with.

(2) The respondents' 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.