Skiller v NSW Slate Roofing Pty Ltd

The history of the proceedings

1. On 26 July 2021, the appellant as the applicant commenced proceedings HB 21/32074 against the respondent as the respondent by filing an application in which she sought orders that she was not liable to pay $1,394.50 to the respondent, and that the respondent pay $25,197.61 to her.
2. On 24 November 2021, the Tribunal dismissed the application and published written reasons for its decision which relevantly provide: "13. Having considered all of the available evidence as well as the parties' submissions at today's hearing, I make the following findings of fact and law … (3) there was pre-existing water ingress issues within the Property (in this regard I accept Mr Walker's sworn evidence which is supported by photographic evidence such as the photographs at pages 114 and 115 of the builder's bundle of documents and I do not place any weight on the home owner's denial of pre-existing issues or on the written evidence in the statement of Mr John Papallo); … (6) up until 17 June 2021, the builder was refused access by the home owner to complete the works it had been contracted to undertake: see, for example, the exchange of text messages at page 41 of the respondent's bundle of documents;"

The history of the appeal

1. On 20 December 2021, the appellant commenced proceedings 2021/00360913 against the respondent by filing a notice of appeal in which she sought leave to appeal on the following grounds: 1. the decision under appeal was not fair and equitable because: 1. the respondent received legal assistance in preparing evidence and appearing at the hearing; 2. various complaints about the findings in the decision at [13(1)] to [13(13)], including: 1. as to the finding at [13(3)], the request to "please explain" the finding of placing no weight on the contrary evidence of the appellant and Mr Papallo; 2. as to the finding at [13(6)], there was no evidence; 1. the decision under appeal was against the weight of evidence because: 1. the Tribunal member did not comment on her oral evidence or ask her any questions, or question both parties; 2. the Tribunal member ignored her evidence; 3. she was given no opportunity to show her annotations of the respondent's evidence, and "no discussion allowed"; 1. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with) because of water ingress in the attic and cracking and watermarks in the ceiling of bedroom 2 since 24 November 2021.
2. On 4 January 2022, the respondent filed a reply to appeal in which it opposed leave to appeal being granted to the appellant.
3. On 19 January 2022, the Appeal Panel granted leave to the parties to be legally represented, made procedural directions for the filing by the parties of any evidence on which they to rely and written submissions, and fixed the hearing of the appeal on 21 March 2021.
4. Neither the appellant nor the respondent respectively filed any evidence in support of, or in opposition to, the appeal.
5. On 16 March 2022, the respondent's lawyers filed: 1. written submissions comprising two pages in opposition to the appeal. 2. written submissions comprising four pages in support of its application that the appellant pay its costs of the appeal on an indemnity basis, or alternatively on the ordinary basis.
6. On 18 March 2022, the appellant filed a document in which she notified the Registrar and the respondent that she had withdrawn her appeal.
7. On 18 March 2022, the Registrar by letter to the parties requested the respondent to advise the Tribunal by 3.00pm that day if it had any objection to the appellant withdrawing the appeal.
8. On 18 March 2022, the respondent's lawyers filed a letter of that date advising that the respondent did not object to the appellant withdrawing the appeal, and attaching written submissions comprising six pages in support of the respondent's costs application (the respondent's costs submissions).
9. On 18 March 2022, the Registrar by letter to the parties advised that the appellant's request to withdraw the appeal and the respondent's costs application would be determined at the hearing on 21 March 2022, and the parties should be prepared to make submissions on those issues at the hearing.
10. On 20 March 2022 at 11.26pm, the appellant sent an email to the Registry, which was copied to the respondent's lawyer and the director of the respondent, in which she addressed her request to withdraw the appeal.
11. On 20 March 2022 at 11.26pm, the appellant sent an email to the Registry, which was copied to the respondent's lawyer and the director of the respondent, in which she opposed the respondent's costs application (the second 20 March 2022 at 11.26pm email).

The hearing of the appeal

1. On 21 March 2022, we heard the appeal. The appellant represented herself. The respondent was represented by Mr A Ahmad of counsel.
2. At the commencement of the hearing we indicated that we would dismiss the appeal. We note that the dismissal would be pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). It followed that the only issue arising for determination was the respondent's costs application.
3. The respondent relied on the letter dated 21 January 2022 marked "Without Prejudice save as to costs" sent by its lawyers to the appellant (the 21 January 2022 letter) which was admitted into evidence over the objection of the appellant (Ex R1).
4. The respondent relied on the respondent's costs submissions. The appellant relied on the submissions in the second 20 March 2022 at 11.26pm email.
5. Each of the respondent and the appellant made oral submissions.
6. At the conclusion of the hearing we made the following orders: "1. The appeal is dismissed. 2. The decision on the respondent's application that the appellant pay the costs of the appeal is reserved."

Introduction

1. The respondent's costs application is pursuant to s 60(2) of the NCAT Act. The determination of this issue involves answering the following two questions: 1. whether there are special circumstances warranting an award of costs in favour of the respondent; 2. if so, whether the discretion should be exercised to award costs.
2. If we decide to make an order that the appellant pay the respondent's costs of the appeal, then the question will arise as to whether the costs should be awarded on an indemnity basis, or alternatively on the ordinary basis.
3. Before considering the respondent's costs application it is appropriate to set out the applicable provisions of the NCAT Act and legal principles, and summarise the evidence and submissions of the parties.

The applicable provisions of the NCAT Act

1. Part 4 Division 1 (ss 35-38) contains provisions dealing with introductory matters relating to the practice and procedure of the Tribunal. Section 36 specifies the guiding principle to be applied to practice and procedure, and relevantly provides: 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. … (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal - (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.
2. Part 4 Division 1 (ss 56-63) contains provisions dealing with determination of issues and proceedings. Section 60 deals with costs, and relevantly 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 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 - … (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. Part 6 Division 2 (ss 80-81) contains provisions dealing with internal appeals. Section 80 deals with the making of internal appeals, and relevantly provides: 80 Making of internal appeals … (2) Any internal appeal may be made - … (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. …
4. Schedule 4 contains provisions dealing with the composition and functions of the Consumer and Commercial Division. Clause 12 deals with the granting of leave to appeal, and relevantly provides: 12 Limitations on internal appeals against Division decisions (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). …

The conduct of an appeal where a party is self-represented

1. In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), the Appeal Panel at [13] stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal.

Errors of law

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law which relevantly includes whether there has been a failure to provide proper reasons, whether there was a failure to afford procedural fairness, and whether there was no evidence to support a finding of fact.
2. In NSW Land and Housing Corporation v Orr [2019] 100 NSWLR 578; [2019] NSWCA 231 Bell P at [66] and [71] (Ward JA at [109] agreeing) made the following observations about the adequacy of reasons for a decision of the Tribunal: "[66] In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] (Resource Pacific). The standard is not one of perfection: Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 255 (Bisley)." "[71] That having been said, even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party): (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that lead the Tribunal to the conclusions it made."

Special circumstances warranting an award of costs within s 60(2) of the NCAT Act

1. "Special circumstances" in s 60(2) of the NCAT Act are circumstances that are out of the ordinary; they do not have to be extraordinary or exceptional circumstances: CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32].
2. In considering whether special circumstances exist for the purposes of s 60(2) of the NCAT Act: 1. each case will depend upon on its own particular facts and circumstances: Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152 at [27]; 2. the discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]; 3. mere success (or failure) of an application does not give rise to special circumstances: The Owners - Strata Plan 5319 v Price [2020] NSWCATAP 245 (Price) at [46]; 4. where special circumstances are found to exist, the Tribunal has a discretion to exercise in deciding what, if any, order should be made. Relevant to the exercise of that discretion are those facts upon which the finding of special circumstances was based. However, those findings do not constitute the whole of the relevant matters to be considered in deciding what, if any, order for costs should be made. Rather, the principles applicable to awarding costs generally must also be taken into account: Brodyn Pty Ltd v Owners Corporation Strata Plan 73019 (No 2) [2016] NSWCATAP 224 at [24].
3. In Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84 (Nichols) Payne JA at [25] (Meagher JA at [13] agreeing) considered the principles governing an application for costs in a case which has been resolved without a hearing on the merits: "[25] The relevant principles governing an application for costs in a case which has been resolved without a hearing on the merits were summarised by McHugh J in Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622 at 624-625; [1997] HCA 6: "In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence litigation. Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd, [6] the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of road and drainage plans. Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in The South East Queensland Electricity Board v Australian Telecommunications Commission [7] where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare. 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 cost 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." (footnotes omitted)
4. The circumstances set out in Nichols at [25] in which an award of costs is made in a case which has been resolved without a hearing on the merits may constitute special circumstances within s 60 of the NCAT Act: Price at [39]-[44].
5. In ONE.TEL Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270 (ONE.TEL) at [6] Burchett J observed: "[6] In my opinion, it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court's discretion otherwise than by an award of costs to the successful party."
6. The principles in ONE.TEL at [6] have been applied in the Tribunal: Knox v Bollen; Bollen v Knox [2018] NSWCATAP 106 at [47].
7. As to the factor in s 60(3)(e) of the NCAT Act, in BDK v Department of Education and Communities [2015] NSWCATAP 129 (BDK), in which the appellant was self-represented as she had been in the decision below, the Appeal Panel at [62]-[66], [72] said in relation to the identical expression in s 55(1)(b) of the NCAT Act: "[62] It will be seen that this Tribunal's power is somewhat differently expressed. The Tribunal's power refers not only applies to proceedings that are "frivolous" or "vexatious", but then applies to proceedings that are "misconceived" or "lacking in substance". Section 55(1)(b) does not have a generic catch-all category of "abuse of process" to pick up conduct in relation to the issuance and pursuit of proceedings that might, arguably, fall outside the four specific categories set out there. [63] In Alchin v Rail Corporation NSW [2012] NSWADT 142 Judicial Member Wright SC (as he then was) examined the meaning of the predecessor provision to s 55(1)(b) - s 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1977. As to the meaning of "misconceived" and "lacking in substance", he said: 25 The expressions used in s 92(1)(a)(i) of the ADA, namely "misconceived" and "lacking in substance" are found not only in the ADA but also in s 73(5)(g) of the ADT Act and similar legislation in other states. With respect to a similar provision found in the Equal Opportunity Act 1984 (Vic), Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [14] said: "misconceived" and "lacking in substance" have not, so far as I am aware, been used in this context before though each expression is commonly used by lawyers, the one connoting a misunderstanding of legal principle and the other connoting an untenable proposition of law or fact. If one may discern, in these provisions, an attempt to express the powers of tribunals in non-technical language, then "misconceived" would represent a claim which did "not disclose a cause of action" …, whereas "lacking in substance" might be seen to represent a claim where the defendant could obtain summary judgment … 26 This approach of construing "misconceived" as including a misunderstanding of legal principle and "lacking in substance" as encompassing an untenable proposition of fact or law has been applied by the Tribunal in many decisions including, for example, Keene v Director-General, Dept of Justice and Attorney-General [2011] NSWADT 59 at [14], McDonald v Central Coast Community Legal Centre [2008] NSWADT 96 at [22] and Stanborough v Woolworths Ltd [2005] NSWADT 203 at [50]. [64] In the present case, the Tribunal referred to the frequently-cited explanation of this term by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491: 1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. 2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise. 3. 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. [65] It will be seen that Roden J's first category covers conduct that falls within the meaning of "frivolous", while his third category embraces the kind of cases to which the expressions "misconceived" and "lacking in substance" are directed (or, in the case of the UCPR categories, cases not disclosing a reasonable cause of action). [66] In our view a reasonably broad connotation should be given to the meaning of the four categories of conduct identified by s 55(1)(b). The intent of the provision, as we see it, is to seek to give the Tribunal a broad power to deal with abuses of its processes, and for them to be interpreted and applied in a power which captures any kind of abuse of process, that can reasonably be seen to fall within their compass. While "misconceived" and "lacking in substance" may be seen as relatively specific terms, we think a flexible, purposive interpretation can be adopted in determining whether proceedings are "frivolous" or "vexatious", conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings. … [72] The question that arises here is whether the power to dismiss summarily a proceeding on the ground that it is "vexatious" can be applied to a proceeding that invokes an available legal right. It is clear, we consider, that the description "vexatious" has been applied to cases where the applicant or plaintiff was exercising an available legal right."
8. In Pines Resort Management Pty Ltd t/as Gateway Lifestyle the Pines v Marsh [2019] NSWCATAP 12 (Pines Resort) an Appeal Panel considered an application for costs by the respondent where the appellant had applied to withdraw the appeal prior to the hearing. The Appeal Panel at [22]-[23] dismissed the application in circumstances where: 1. while the respondent did undertake work in the preparation of evidence and submissions, nothing was out of the ordinary in respect of the steps taken; 2. there was nothing in the conduct of the case that would suggest the appellant did not meet its obligations under s 36 of the NCAT Act.

Indemnity costs

1. The principles concerning the award of indemnity costs were relevantly considered by the Appeal Panel in Ashton v Stevenson; Stevenson v Ashton (No 2) [2019] NSWCATAP 238 (Ashton (No 2)) at [28]: "[28] The following from Paraskevopoulos v Bajic (No. 2) [2018] NSWCATCD 40 at [17] - [19] … is relevant to the question of indemnity costs: As the Appeal Panel has observed, the Tribunal's discretion to award indemnity costs is exercised in limited circumstances and it must be the subject of careful reasoning: see Mendonca v Tonna [2017] NSWCATAP 176 at [59] - [60], [62] - [64] and the cases cited therein by the Appeal Panel. When costs follow the event, as I have decided they should in the three proceedings, then usually they are awarded on the ordinary basis. In Oshlack at [44], Gaudron and Gummow JJ stated that before the Court can order indemnity costs, it is necessary to find what their Honours described as: "some relevant delinquency on the part of the unsuccessful party". As McHugh J explained in the same case at [67], the indemnity costs order is made not to punish the unsuccessful party but because "[a]s between the parties, fairness dictates that the unsuccessful party" should bear those additional costs. Where Indemnity costs are ordered based upon a "relevant delinquency" it is normally a case of misleading a court or tribunal, or bringing proceedings for collateral or ulterior purposes and not for the purposes of having a court or tribunal adjudicate on the issues to which they give rise, or if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless: Wentworth v Rogers [1999] NSWCA 403; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401; Cultus Petroleum v OMV Australia [1999] NSWSC 435. …"

The evidence of the respondent

1. In the 21 January 2022 letter the respondent's lawyers relevantly refer to ss 60(2) and (3(b), (c), (e) and (g), and Sch 4, cl 12(1) of the NCAT Act, and comments made by the Appeal Panel on 19 January 2022, assert that the appeal would fail because the appellant had not satisfied any of the criteria for a grant of leave to appeal under Sch 4, cl 12(1) of the NCAT Act, and invite the appellant to withdraw the appeal on the basis that the respondent would agree to bear its own legal costs to date.

The evidence of the appellant

1. In the second 20 March 2022 at 11.26pm email the appellant attached a copy of the notice to appeal, an email from herself to the respondent's director sent on 12 December 2021 at 7.06pm and attached photographs (the 12 December 2021 at 7.06pm email), an email from Funda Karabacak (Ms Karabacak) of the respondent's lawyers sent to her on 15 February 2022 at 3.36pm (the 15 February 2022 at 3.36pm email), a certificate of currency of Berkley Insurance Company (Berkley) for the respondent for the period from 4 October 2020 to 4 October 2021 (the Berkley certificate), and the terms of the General and Liability Insurance Policy of Berkley (the Berkley policy).
2. In the 15 February 2022 at 3.36pm email Ms Karabacak relevantly referred to procedural directions for the filing by the parties of any evidence on which they intended to rely and written submissions made by the Appeal Panel on 19 January 2022, and advised that the respondent would proceed on the basis that the appellant did not intend to serve any further evidence unless the appellant advised to the contrary.
3. It is unnecessary to set out details of the Berkley certificate, the Berkley policy and the 12 December 2021 at 7.06pm email as we do not regard them as being relevant to the determination of the respondent's costs application.

The submissions of the respondent

1. In the respondent's costs submissions the respondent makes the following submissions: 1. it sets out the history of the proceedings and the history of the appeal including that no response was received from the appellant to the 21 January 2022 letter and the 15 February 2022 at 3.36pm email; 2. it refers to ss 60(2) and (3(c), (e), (f) and (g) of the NCAT Act; 3. it refers to the legal principles for an award of costs on the indemnity basis; 4. it refers to the legal principles for an award of costs in the absence of a hearing on the merits; 5. it relies on the following factors in support of an indemnity costs order: 1. leave was granted for the parties to be legally represented; 2. it has been put to the expense of taking instructions on the appellant's appeal; preparing a Reply to Appeal; attending a directions hearing; drafting written submissions; and briefing counsel to appear at the hearing; 3. the appellant has not complied with the orders of the Appeal Panel by failing to lodge any evidence and submissions in support of the appeal; 4. the appellant has failed to evidence the basis upon which she has suffered a substantial miscarriage of justice in order for leave to be granted for an internal appeal pursuant to cl 12 of Sch 4 of the NCAT Act; 5. no adequate explanation has been provided by the appellant for failing to lodge evidence and submissions and ample opportunity was provided to the appellant to do so prior to it lodging its submissions; 6. in the absence of any evidence and submissions relied upon by the appellant, the appeal would have failed and it was almost certain to have succeeded if the matter had been fully tried; 7. it had invited the appellant to withdraw her appeal on the basis of each party bearing their own costs, prior to it having incurred significant costs; 8. no adequate explanation has been provided by the appellant for the withdrawal of her application; and 9. it had not engaged in any disentitling conduct.

The submissions of the appellant

1. In the second 20 March 2022 at 11.26pm email the appellant has submitted that there are no special circumstances warranting an award of costs.

Whether there are special circumstances warranting an award of costs in favour of the respondent

1. We are not satisfied that there are special circumstances warranting an award of costs in favour of the respondent within s 60(2) of the NCAT Act for the following reasons: 1. having regard to the principles in Nichols at [25], we are unable to conclude that the appellant has acted so unreasonably that the respondent should obtain the costs of the appeal. We are not confident that, although both parties have acted reasonably, the respondent was almost certain to have succeeded if the matter had been fully tried. As set out in [10] above, in the notice of appeal the appellant identifies errors for which leave to appeal is required. Having regard to the principles in Cominos at [13], we consider that the appellant's grounds of appeal also include errors of law by reason of a failure to afford procedural fairness through a lack of opportunity to present her case and inadequate reasons at [13(3)], and the absence of any evidence for the finding at [13(6)]. In the absence of argument, we do not accept that it was almost certain that all of these grounds of appeal would not have been successful; 2. the respondent's submission that the appeal is frivolous, vexatious or and lacking in substance within s 60(3)(e) of the NCAT Act contains no elaboration. Having regard to the principles in BDK at [62]-[66], [72], we do not accept that: 1. the appellant instituted the appeal with the intention of annoying or embarrassing the respondent; 2. the appellant instituted the appeal for collateral purposes; 3. the appeal is so obviously untenable or manifestly groundless as to be utterly hopeless; 1. we do not accept that the sending of the 21 January 2022 letter and the failure of the appellant to withdraw the appeal until 18 March 2022 constitutes special circumstances within any of s 60(3)(a) to (g) of the NCAT Act. The assertion in the 21 January 2022 letter that the appellant had not satisfied any of the criteria for the granting of leave to leave under cl 12 of Sch 4 of the NCAT Act was made before the time for the provision of any evidence and submissions made in the procedural directions of the Appeal Panel on 19 January 2022 had elapsed; 2. we do not accept that by withdrawing the appeal on 18 March 2022 the appellant after litigating for some time effectively surrendered to the respondent within the principle in ONE.TEL at [6]. Unlike the situation in ONE.TEL, other than filing the notice of appeal the appellant took no step to prosecute the appeal before withdrawing it.
2. On the contrary to the respondent's costs submissions, consistent with the finding in Pines Resort at [22], while the respondent's lawyers did undertake work in the preparation of evidence and submissions, there was nothing out of the ordinary in respect of the steps taken.
3. As we have not been satisfied of the condition in s 60(2) of the NCAT Act that there are special circumstances warranting an award of costs in favour of the respondent, it follows that the respondent's costs application should be dismissed.

If so, whether the discretion should be exercised to award costs

1. As we have not been satisfied of the condition in s 60(2) of the NCAT Act that there are special circumstances warranting an award of costs in favour of the respondent, this question does not arise. If we had been satisfied that there are special circumstances warranting an award of costs in favour of the respondent, then we would not have exercised the discretion to award costs in favour of the respondent for the following reasons: 1. the respondent's lawyers in the 21 January 2022 letter did not indicate that there was any time limit on the offer that the respondent would bear its own costs if the appellant withdrew the appeal; 2. it was only after the appellant indicated that she was withdrawing the appeal that the respondent made the respondent's costs application.

Whether any award of costs in favour of the respondent should be awarded on an indemnity basis, or alternatively on the ordinary basis

1. As we have decided that the respondent's costs application should be dismissed, this question does not arise. If we had decided to grant the respondent's costs application, then we do not accept, having regard to the principles in Ashton (No 2) at [28], that any of the factors relied on by the respondent constitutes a relevant delinquency warranting an award of costs on an indemnity basis.

Orders

1. We make the following order: 1. the application of the respondent the appellant pay its costs of the appeal on an indemnity basis, or alternatively on the ordinary basis, 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. 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: 30 March 2022