Watson v Powers

(1) $50.00 - costs of obtaining sound recordings from the original hearing;

(2) $366.13 photocopying of appeal documents;

(3) $64.95 - postage expenses for serving documents;

(4) $107.52 - petrol expenses for travel to Sydney for the appeal hearing;

(5) $49.00 - parking fees during attendance at the hearing in Sydney.

1. Both parties in their submission have agreed that a hearing of the costs application can be dispensed with and the costs application can be determined on the papers.
2. We are satisfied under s 50(2) of the NCAT Act that the costs application is appropriately determined in the absence of the parties on the written submissions provided by the parties.

1. A brief background of the proceedings between the parties is set out below.
2. A decision was published to the parties in the Consumer and Commercial Division of the Tribunal on 12 October 2023 (the Decision). The Decision was made in accordance with the Tribunal's jurisdiction under the Residential Tenancies Act 2010 (NSW).
3. The essence of the Decision was that the tenants were successful and obtained a money order in their favour of $11,4000 as a rent abatement due to mould.
4. The landlord filed an appeal from the Decision on 1 October 2024.
5. The appeal was heard on 5 February 2025. The decision of the Appeal Panel was to refuse leave under s 41 of the NCAT Act to extend time to file the appeal as it had been filed a considerable period beyond the limitation period contained in r 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules).
6. It followed that the Appeal Panel dismissed the appeal.

1. The relevant regime for costs for this Appeal is s 60 of the NCAT Act which 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.

(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. The Tribunal is required to make a global assessment of whether there are special circumstances, having regard to the matters set out in subsection 60(3).
2. It is well-established that the adjective "special" requires circumstances that are out of the ordinary but do not need to be extraordinary or exceptional: Megerditchian v Kumond Homes Pty Ltd [2014] NSWCATAP 120.
3. The tenants submit that the costs were reasonably and necessarily incurred to prepare for and conduct the appeal proceedings; that the tenants have complied with all directions of the Tribunal and the expenses relate directly to the effective conduct of the matter and were not excessive or avoidable.
4. In response, the landlord submits that the money order in favour of the tenants and loss of rent adequately compensated the tenant and no further amount should be awarded.
5. As the tenants seek costs, they bear the onus of proving at the civil standard, being the balance of probabilities that there are special circumstances for the purposes of s 60(2) of the NCAT Act..
6. The tenants have made no submissions that there are "special circumstances" in accordance with any factor under s 60(3) or any other matter, that would warrant the Appeal Panel exercising its discretion to depart from the usual principle that each party pay its own costs of the appeal under s 60(1) of the NCAT Act.
7. Accordingly, we do not consider that the tenants have established special circumstances and the application for costs fails. The usual position under s 60 is upheld so that each party pays its own costs.

1. A hearing of the costs application is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).
2. Each party is to pay its own costs of the appeal.

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.