Tsoukaris v The Owners – Strata Plan No. 30102

1. The respondent submits the grant of an extension of time would cause it prejudice. The submission is made in general given the substantial delay and the considerable time and expense incurred by the respondent in the proceedings. Further, the respondent also submits it sought to enforce costs orders in the proceedings it had thought were final, including commencing court proceedings to recover those costs which could be at risk if an extension of time to appeal were granted.
2. We accept the grant of an extension of time would cause prejudice to the respondent given the substantial delay and because the respondent has taken steps to enforce costs orders. Therefore, this consideration weighs against a grant of an extension of time.

1. As set out above, no relevant consideration weighs in favour of the grant of an extension of time. In all the circumstances, including having regard to the length of the delay, the absence of a satisfactory explanation for the delay, and the appellant's lack of prospects in the appeal, there is no basis to justify the grant an extension of time for the filing of the appeal. As a result, we decline to exercise the discretion to extend time for the making of the appeal and therefore refuse the appellant's application to extend the time for making of the appeal.

1. In the absence of the grant of an extension of time these proceedings lack jurisdiction and must be dismissed.

1. In the event the appellant was unsuccessful on the appeal, the respondent seeks its costs of the appeal on an indemnity basis, relying on a letter of 8 August 2025.
2. Relevantly the letter provides:

"...The [respondent] offers for your client to withdraw her Appeal by 5pm Tuesday 12 August 2025, in return for which the [respondent] will not seek an order for its costs of the Appeal...If your client does not withdraw her Appeal by that time and the appeal is later withdrawn or dismissed, the [respondent] will rely on this letter in seeking an order that your client pay the [respondent]'s costs on an indemnity basis.

...

If the Appeal is subsequently withdrawn or dismissed, the [respondent] intends to rely on this letter in support of an application that your client pay its costs on an indemnity basis, or alternatively on the ordinary basis, including in relation to establishing that there are special circumstances warranting an order for cots under section 60 of the [NCAT Act] if that is necessary."

1. Procedural directions made on 13 August 2025 required the appellant to lodge amended grounds of appeal by 20 August 2025. The appellant did not lodge any amended grounds of appeal in the proceedings.
2. The procedural directions of 13 August 2025, relevantly extended on 21 October 2025, also:

(1) required the respondent to provide any material on the appeal by 14 October 2025 (direction 6); and

(2) required the appellant to provide any written submissions in reply on the appeal by 8 December 2025 (direction 7).

1. The procedural directions of 13 August 2025 also relevantly included:

"NOTES:

...

(2) If any party wishes to make an application for costs of the appeal, that party is to lodge with the Appeal registry and give to the other party any submissions on costs at the same time as their submissions in relation to the appeal."

1. In written submissions of 8 December 2025 the respondent requested the Appeal Panel make provision for a timetable for written submissions as to costs following the substantive appeal decision.
2. At the appeal hearing the parties were each provided with an opportunity to make oral submissions as to costs.
3. In all the circumstances, we consider the parties were provided with a reasonable opportunity to provide submissions as to costs and applying the guiding principle under s 36 of the NCAT Act, we consider the issue of costs can therefore be determined within these reasons.
4. The appellant submits it was not correct to characterise the appellant's case as hopeless, as the respondent had in the letter and in submissions, and it was not unreasonable for the appellant to proceed with the appeal following receipt of the letter. If special circumstances were established, the appellant submits costs should only be awarded on the ordinary basis, not an indemnity basis.

1. Section 60(2) of the NCAT Act provides a discretion to the Appeal Panel to award costs if "satisfied that there are special circumstances warranting an award of costs". Those special circumstances are circumstances that are out of the ordinary and do not have to be extraordinary or exceptional: see Youssef v NSW Legal Services Commissioner (Costs) [2020] NSWCATOD 115 (Youssef) at [108] citing Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222 at [8]; see also Houda v Seraphim (Costs) [2025] NSWCATAP 188 at [8].
2. Section 60(3) of the NCAT Act provides factors the Appeal Panel may have regard to in deciding whether special circumstances exist that warrant an award of costs as follows:

(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.

1. The onus to satisfy the Appeal Panel that there are special circumstances warranting an award of costs lies with party seeking costs: Styles v Wollondilly Shire Council [2017] NSWCATAP 108. In this case, the appellant bears that onus.
2. The exercise of the discretion requires the Appeal Panel "to weigh whether those circumstances are sufficient to amount to 'special' circumstances that justify departing from the general rule that each party bear their own costs": BPU v New South Wales Trustee and Guardian (Costs) [2016] NSWCATAP 87 at [9].
3. The Appeal Panel is to exercise the discretion fairly and reasonably "having regard to the circumstances of the particular case" (Brodyn Pty Ltd v Owners Corporation - Strata Plan 73019 (No 2) [2016] NSWCATAP 224 at [24]); and judicially, having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: Lisle v Courtney [2025] NSWCATAP 121 (Lisle) at [35] citing eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48].
4. Merely because one or more s 60(3) criteria are satisfied does not necessarily mean that costs should be awarded: see The Owners - Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 at [11]- [13]. Where special circumstances are found to exist, the Appeal Panel "has a discretion to exercise in deciding what, if any, order should be made": Lisle at [34].
5. As set out by the Appeal Panel in FZK v Secretary, Department of Communities and Justice (No 4) [2025] NSWCATAP 278 at [41]:

"... Satisfaction as to the existence of special circumstances merely enlivens the discretion to award costs rather than mandating an award of costs: Al-Aaraj v Commissioner of Police, NSW Police Force (No 2) [2025] NSWCATAP 166 at [40]; Brodyn Pty Ltd v Owners Corporation - Strata Plan 73019 (No 2) [2016] NSWCATAP 224 at [32]. This necessitates the making of a second decision (which we term the overall discretion) as to whether in all the circumstances, an award for costs should be made."

1. An award of costs is intended to be compensatory not punitive: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at p 567 per McHugh J; [1990] HCA 59; Grasso v The Owners - Strata Plan No. 52399 [2022] NSWCATAP 91 at [12(6)].

Do special circumstances exist that warrant an award of costs?

1. The appellant was legally represented and as such does not get the benefit of any tolerance that may be granted to self-represented litigants who may not understand legal concepts when considering exposure to costs orders: Gokani-Robins Pty Ltd v The Owners - Strata Plan No 77109 (No 2) [2025] NSWCATAP 204 at [33].
2. The fact the respondent has incurred costs, that we accept has occurred in this case, does not itself indicate circumstances out of the ordinary: see Clarke v Bowen (No 2) [2019] NSWAP 230 at [9]. Nor does the respondent's success on appeal necessarily amount to special circumstances: Youssef at [107].
3. The application for an extension of time for the making of the appeal was refused in part because the appellant's prospects on the appeal were poor, as set out above. We consider the appellant's claim should be characterised as very weak because no question of law was made out and no basis for leave to appeal was established.
4. The substantial delay of nearly three years absent a satisfactory explanation from the appellant is also a relevant consideration in determining whether special circumstances exist that warrant an award of costs.
5. The appellant's conduct in not lodging amended grounds of appeal as directed is also of relevance. The appellant has a duty to both "give effect to the guiding principle" and "comply with directions and orders of the Tribunal": s 36(3) of the NCAT Act. The appellant's conduct consequently required clarification of the grounds of appeal at the hearing. We also accept the submission of counsel for the respondent that a further consequence was the written submissions of the respondent incurred more costs in order to address all potential points that may have been taken, in the absence the appellant clarifying the grounds of the appeal.
6. Taking into account all of the above, in all the circumstances, we consider special circumstances exist to award costs and an award of costs is warranted under s 60(2) of the NCAT Act.

1. If costs are to be awarded by the Appeal Panel, s 60(4) of the NCAT Act provides the Appeal Panel may determine both "by whom and to what extent costs are to be paid" as well as the basis on which costs are to be assessed.
2. The respondent seeks an order that costs be paid on an indemnity basis relying on the letter of 8 August 2025 from the respondent to the appellant that put the appellant on notice the respondent considered the appellant's claim had no reasonable prospects of success and that the respondent would rely on the letter to support a claim for costs on an indemnity basis, or in the alternative costs on an ordinary basis, in these appeal proceedings.
3. In Miwa Pty Ltd v Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344 at [8], Basten JA identified the following two questions relevant to whether costs should be awarded on an indemnity basis: "whether - (a) there was a genuine offer of compromise, and (b) it was unreasonable for the offeree not to accept it."
4. We consider the letter (see extracts above at [64]) demonstrates the respondent made a genuine offer of compromise. We also consider it was unreasonable for the appellant to refuse the offer because, as we have determined, the appellants prospects on appeal were very weak and the delay in bringing the appeal was substantial with no satisfactory explanation.
5. On that basis we therefore determine the appellant should pay the respondent's costs of the appeal on an indemnity basis.

(1) The appellant's application for an extension of time to appeal is refused.

(3) The appellant is to pay the respondent's costs of the proceedings on an indemnity basis.

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.