Westerweller v The Owners Strata Plan No 18482

Dispensing with a hearing

1. Neither party opposed us considering the respondent's application for costs on the papers and without a hearing. As we are satisfied that the issues can be adequately determined in the absence of the parties by considering their written submissions, we order that a hearing is dispensed with: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 50(2).

The relevant costs rule and principles

1. The respondent correctly identified s 60 of the NCAT Act as the relevant costs rule. Section 60 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 - (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.
2. As the Appeal Panel stated recently in Roberts v The Owners - Strata Plan No 4393 [2023] NSWCATAP 119 at [68]: The general position in the Tribunal regarding the application of s 60 was summarised by the Appeal Panel in Monument Building Group Pty Ltd v Kapila (No 2) [2021] NSWCATAP 339. The Appeal Panel said: 8. Special circumstances are circumstances that are out of the ordinary, but need not be those which are exceptional or extraordinary: Edwards v Commissioner for Fair Trading, Department of Customer Service (Costs) [2019] NSWCATAP 249 at [9]; Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]; Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222 at [8]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32]. 9. If satisfied that there are special circumstances, the Appeal Panel must further be satisfied that they are circumstances "warranting an award of costs": Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103. 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 87at [9].

Respondent's submissions

1. In summary, the respondent submits that the appellant should be ordered to pay its costs of the appeal because there are special circumstances warranting an award of costs under s 60 of the NCAT Act namely: 1. the appeal was misconceived and untenable (s 60(e)), 2. because the appellant conducted the appeal in a way that unnecessarily disadvantaged the respondent and increased its costs (ss 60 (a) and (g)).
2. In relation to the appeal against the Primary Decision, the respondent notes that that appeal was lodged more than 11 weeks out of time, and that therefore the appellant required leave to extend the time for the filing of the appeal. In accordance with the principles in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 and confirmed in Di Salvo v Leung [2014] NSWCATAP 44, that required the Appeal Panel to consider the length of the delay, the reason for the delay, any prejudice to the respondent caused by the delay and the appellant's prospects for success, that is whether the appellant had a fairly arguable case.
3. The respondent notes that the Appeal Panel rejected the extension of time application and correctly held that: 1. the appellant's delay in appealing against the Primary Decision was lengthy; 2. the extension of time application was not supported by any evidence to adequately explain the reason for the lengthy delay in bringing the appeal against the Primary Decision; and 3. the appeal against the Primary Decision did not have more substantial merit than being fairly arguable.
4. The respondent submits that the Appeal Panel's reasons for rejecting the extension of time application demonstrate that the application was misconceived and untenable and consequently, that the appeal against the Primary Decision could not possibly succeed. The respondent further submits that, even if the extension of time application had been granted, the appeal against the Primary Decision was still misconceived and untenable for the reasons given by the Appeal Panel.
5. As to the appeal against the Costs Decision, the respondent notes that there were two aspects to the appeal.
6. First, the appellant challenged the Tribunal's decision to dispense with a hearing on the question of costs. Second, the appellant challenged the Tribunal's conclusion that there were special circumstances warranting an award of costs and the exercise of its discretion as to costs.
7. The respondent submits that neither aspect of the appeal in relation to the Costs Decision had reasonable prospects for success or was tenable.
8. As to the appellant's conduct of the appeal, in summary the respondent submits that the appellant conducted the appeal in a manner which disadvantaged the respondent and caused the respondent to incur additional costs by: 1. pursuing copious grounds of appeal, which was oppressive and did not promote the just, quick and cheap resolution of the real issues in the appeal; 2. failing to comply with directions made by the Appeal Panel for the conduct of the appeal; 3. raising matters in the appeal that were not agitated before the Tribunal at first instance and ought not to have been raised in the appeal; and 4. seeking to rely on new evidence that was reasonably available in the proceedings under appeal.

Consideration

1. There is substance in the respondent's submissions which we accept.
2. As to the appeal against the Primary Decision, we noted in the Appeal Decision that: 1. the delay in filing the Amended Notice of Appeal was lengthy, being 11 weeks after the Primary Decision was published, and we found that there was no satisfactory explanation for such a lengthy delay; 2. the appellant should not be allowed to rely on new evidence, that is evidence that was not before the Tribunal; 3. the appellant was seeking to run its case again; 4. the appellant should not be allowed to raise matters that he had not raised before the Tribunal; 5. as the reason for the delay in commencing the appeal in relation to the Primary Decision was less than satisfactory, for an extension of time to be granted the appellant should be able to show that the appeal has more substantial merit than merely being fairly arguable.
3. We concluded that the grounds of appeal were not established and that we would not have granted leave to appeal. Therefore, we found that the appeal did not have substantial merit. This factor conclusively weighed against granting an extension of time.
4. As to the appeal against the Costs Decision, the respondent submits, correctly, that we "swiftly" rejected the first aspect of the appeal. We observed that the decision to dispense with a hearing on costs was a routine decision that was not arbitrary and which was arrived at in an orthodox manner after the Tribunal considered the parties' submissions: Appeal Decision at [85] - [86].
5. We were also swift to reject the second aspect of the appeal against the Costs Decision. We concluded that the Tribunal's reasons for its Costs Decision were "lengthy, considered and detailed", took into account the parties' submissions on costs and disclosed no error in the exercise of the Tribunal's costs discretion and no error of the House v The King type: Appeal Decision at [103].
6. We concluded that the second aspect of the appeal constituted an attempt by the appellant to challenge findings of fact and reasoning of the Tribunal that were clearly open on the available evidence: Appeal Decision at [105]. Consequently, the appellant needed leave to pursue the second aspect of his appeal against the Costs Decision but that application for leave had no merit. Appeal Decision at [105].
7. In our view, the appeal was entirely unmeritorious, so much so that it can be characterised as untenable and misconceived. Further, we consider that by pursuing numerous grounds of appeal that had no merit and by raising issues in the appeal that had not been raised in the proceedings below, the respondent was put to unnecessary costs in defending the appeal proceedings.

Conclusion

1. In summary, we are satisfied that the weakness of the grounds of appeal and the conduct of the appeal proceedings constitute special circumstances, In the absence of any submissions from the appellant challenging the respondent's submissions, we are satisfied that special circumstances warrant an award of costs.
2. It follows that the appellant must pay the respondent's costs of the appeal.

Order

1. The Appeal Panel orders: 1. A hearing is dispensed with. 2. The appellant is to pay the respondent's costs as agreed or as assessed.

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

Amendments 20 June 2023 - Paragraph [19] - the word "appellant's" is to be changed to "respondent's". Paragraph [26] - the word "the" before "special circumstances", removed. Paragraph [26] - the comma at the end of the paragraph, removed. 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: 20 June 2023