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[2014] NSWCATCD 181
NCAT Consumer and Commercial
2014-05-23
Original judgment source is linked above.
reasons for decision 1Shi Shi Cindy Lee commenced proceedings against Geoffrey Lee and Sue Maree Lee/Olsen by application to the Consumer Trader & Tenancy Tribunal on 27 August 2012. On the same day and in precisely the same terms Ms Jessica Talbert filed an application identifying Dr Geoffrey Lee and Ms Sue Maree Lee/Olsen as respondents in respect of her property which adjoins that of Ms Shi Shi Cindy Lee. The applications moved together through the interlocutory process. 2The applications concerned the alleged failure of owner builder work at adjoining sites in Lindfield. 3It was alleged that the "Owner builder failed to construct retaining walls According to approved plans. Remedial action to pin floating boulder is urgently required + property subject to a Section 121b order from Ku Ring Gai Council pursuant to EPA". 4The applications were referred directly to the CTTT without intervention by Fair Trading as they fell into a category of claim that by direction of the Chairperson of the Tribunal should proceed directly to the Tribunal. 5The claim was identified as a claim against an owner builder regarding defective work. 6The order under the Environmental Planning and Assessment Act 1979 required the property owner Ms Lee to; (1)Remove the defective retaining wall and associated fill to expose the rock face. (2)Undertake the rock dowling as per the recommendations from Geo Enviro Consultancy Pty Ltd dated 16 February 2012 in relation to the above premises. (3)The works are to be supervised by a Geotechnical Engineer and Certification provided to the Council upon completion. (4)Provide sediment/erosion controls until the site works have been complete or stabilised to prevent run-off to adjoining properties. 7Concisely, the problem as I have come to understand it is that a narrow sandstone "floater" varying in width from the exposed face on the drive of Ms Lee's property and Ms Talbert's property, Northwards to the up-hill property from 1800mm to 3000mm. The floater was acting as a retention structure for overburden fill. The floater is founded on a weak layer of clayey siltstone. The combination of the free face, weak foundation rock and overburden has resulted in creep movement of the floater to the South where it threatens to demolish the garage on Ms Shi Shi Cindy Lee's property. 8For abundant clarity I should note that Dr Lee and Sue Maree Lee/Olsen are or were married and at the time the matter came before the Tribunal were or are engaged in an acrimonious divorce which is or was stayed pending the outcome of the Tribunal proceedings. Ms Shi Shi Cindy Lee is unrelated to the other parties. 9The application and a subsequent application came before 6 members before coming before me on 6 December 2013. During this period the floater continued its inexorable decent towards Ms Lee's garage. 10I note that Ms Sue Maree/Lee Olsen attended 2 Directions hearings, and on 15 October 2012, 7 June 2013, and 1 Return of Summons hearings on19 February 2013 before various Tribunal Members until she was "removed as an respondent" by orders made on 7 June 2013. 11On that occasion Ms Sue Maree Lee/Olsen was represented by solicitors Lincoln Smith & Company, the appearance record does not indicate that the second respondent was represented at the hearing, or if the Member relied upon the solicitor's representations which briefly indicated that;
Discussion and Findings 20Mr Jones of counsel appeared pro-bono for Ms Lee and sought leave to represent her in relation to her costs claim which was made against Ms Shi Shi Cindy Lee, Ms Jessica Talbert and GP Legal Solicitors. The claims were conceived as a building claim under the Home Building Act 1989. 21On 23 May 2014 I found that the application did not enliven the jurisdiction of the Tribunal as it was not a Home Building application but simply sought costs in other proceedings being HB 12/44112 and HB 12/24744. 22I refused leave for Mr Jones to appear for Ms Olsen and he properly withdrew from the proceedings but remained and assisted Ms Lee with submissions which she made. 23The issues have become extremely complex and new claims for costs have now arisen in respect of the time taken by Ms Olsen and in respect of costs claims between the original applicants which are yet to be considered. 24As these proceedings were commenced in 2014 there is no doubt that the Civil and Administrative Tribunal Act 2013 applies to the proceedings. 25Section 60 of the Act has the following provisions relating to 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 the 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 the party has conducted the proceedings in a way that unnecessarily disadvantages 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)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. 26The applicant in these proceedings commenced them as a new building claim HB 14/24744 seeking costs which she alleged were incurred in other proceedings. 27Ms Olsen was unable to identify or take me to any legislation giving me jurisdiction to determine the application which I found was not a building claim and in consequence of that finding, that I had no jurisdiction. 28Moreover, I formed the view that even if I had jurisdiction there was no evidence in support of the claim to support an order for costs of the magnitude for which the application has been made, because apart from this application the applicant appeared in person on every occasion that the matter came before the various members. 29Ms Olsen also referred me to the Civil Procedures Act 2005 which I note refers in Section 4 to Schedule 1 of the Act wherein the Courts and Tribunals relevant to parts of the Act are identified. The NSWCAT is not a nominated Tribunal. 30I have formed the view that this application is frivolous and vexatious and I rely upon the following cases as the basis for my decision in this regard. 31An application is "frivolous" if it cannot possibly succeed, if it is manifestly groundless, discloses a case which the court or tribunal is satisfied cannot succeed General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129,130. 32Further in Perden v Lake Macquarie Refrigeration Pty Ltd (2004) 134 IR 149 the Full Bench of the Industrial Relations Commission of NSW said at [20] "In the light of the well established line of authority, and the ordinary meaning of the word "frivolous" we are satisfied that an application ...will be "frivolous" if on its face it cannot possibly succeed, if it is manifestly groundless or if it is a paltry or trifling matter." 33The test for determination of proceedings to be considered "vexatious" is set out in Attorney General v Wentworth (1988) 14 NSWLR at 491 in the following terms; (a)Proceedings are vexatious if they are instituted with the intention of of annoying or embarrassing the person against whom they are brought; (b)They are vexatious if they are brought for a collateral purpose of having the court adjudicate on the issues to which they give rise. (c)They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless. 34I have, after careful consideration of Ms Olsen's application reached the conclusion that the application is; Frivolous and vexatious. Misconceived. Lacking in substance. Has no tenable basis in fact or law, and Was doomed to fail. 35I should note that I have been aware of Ms Olsen's distress concerning these proceedings and it was for that reason that she was given an extended opportunity to present her case. 36Orders have been made for submissions in relation to costs of this application by Ms Shi Shi Cindy Lee Ms Talbert and Dr Lee for determination on the papers without the need for further appearance. P Briggs General Member Civil and Administrative Tribunal of New South Wales 18 September 2014
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: 26 November 2014
(1964) 112 CLR 125
(2004) 134 IR 149