White House Developments Pty Ltd v The Owners - Strata Plan No 70276 (No 2)

"(4) The respondent is to pay one quarter of the costs of the appellant of the appeal on the ordinary basis."

1. On 9 April 2025, OSP70276 applied to vary the appeal costs order to seek the following order (the OSP70276 costs application):

"The Appellant is to pay three quarters of the of the Respondent's costs of the appeal on the ordinary basis,

Or in the alternative,

Each party to pay their own costs."

1. On 11 November 2024, the Tribunal constituted by Senior Member G Ellis SC in the Consumer and Commercial Division made a decision on the costs of the proceedings at first instance (the 11 November 2024 decision) relevantly comprising the following order (the first instance costs order) and reasons:

"(2) The applicant is to pay 80% of the respondent's costs, on the ordinary basis, as agreed or as assessed if no such agreement can be reached."

1. On 9 April 2025, WHD applied to vary the first instance costs order to seek the following order (the WHD costs application):

"(2) The applicant is to pay 60% of the respondent's costs, on the ordinary basis, as agreed or as assessed if no such agreement can be reached."

1. We have decided that each of the OSP70276 costs application, and the WHD costs application which we have treated as an application to reopen the appeal, should be dismissed.

1. The history of the appeal up to 2 April 2025 is set out in the Appeal Decision at [28]-[37].
2. On 9 April 2025, OSP70276 lodged its submissions on the costs of the appeal as part of the OSP70276 costs application (the OSP70276 appeal costs submissions).
3. On 9 April 2025, WHD lodged the following documents:

(1) its submissions on the costs of the proceedings at first instance as part of the WHD costs application (the WHD costs submissions);

(2) the affidavit of David Edward Edwards (Mr Edwards) affirmed on 9 April 2025 (the Edwards affidavit).

1. On 16 April 2025, WHD lodged its submissions on the costs of the appeal in response to the OSP70276 appeal costs submissions (the WHD appeal costs submissions).
2. On 16 April 2025, OSP70276 lodged its submissions in response to the WHD costs submissions (the OSP70276 costs submissions).
3. On 22 April 2025, WHD lodged its submissions in reply to the OSP70276 costs submissions (the WHD costs submissions in reply).

(1) whether a hearing of the OSP70276 costs application should be dispensed with;

(2) whether the appeal costs order should be varied;

(3) whether the first instance costs order should be varied.

1. Before considering these issues, we have set the provisions of the NCAT Act that are applicable to their determination.

1. Part 1 (ss 1-6) contains preliminary provisions. Section 3 specifies the objects of the NCAT Act, and relevantly provides:

3 Objects of Act

The objects of this Act are -

...

(d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and

...

1. Section 4 contains definitions, and relevantly provides:

4 Definitions

(1) In this Act -

...

ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including -

(a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and

(b) a decision concerning the awarding of costs in proceedings.

...

decision - see section 5.

...

internal appeal, internal appeal jurisdiction and internally appealable decision - see section 32.

...

1. Section 5 deals with the meaning of the word "decision" in the NCAT Act, and relevantly provides:

5 Meaning of "decision"

(1) In this Act, decision includes any of the following -

(a) making, suspending, revoking or refusing to make an order or determination,

...

1. Part 3 (ss 28-34) contains provisions dealing with the jurisdiction of the Tribunal. Section 32 deals with the internal appeal jurisdiction of the Tribunal, and relevantly provides:

32 Internal appeal jurisdiction of Tribunal

(1) The Tribunal has internal appeal jurisdiction over -

(a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and

...

(4) An internally appealable decision is a decision of the Tribunal or a registrar over which the Tribunal has internal appeal jurisdiction.

(5) An internal appeal is an appeal to the Tribunal against an internally appealable decision.

...

1. Part 4 Division 1 (ss 35-38) contains introductory provisions dealing with the practice and procedure of the Tribunal. Section 36 deals with the guiding principle to be applied to the practice and procedure of the Tribunal, 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.

(2) The Tribunal must seek to give effect to the guiding principle when it -

(a) exercises any power given to it by this Act or the procedural rules, or

(b) interprets any provision of this Act or the procedural rules.

1. Section 38 deals with the procedure of the Tribunal generally, and relevantly provides:

38 Procedure of Tribunal generally

...

(4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

...

1. Part 4 Division 5 (ss 56-63) contains provisions dealing with the determination of issues and proceedings in the Tribunal. Section 60 deals with costs, and relevantly provides:

60 Costs

...

(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.

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.

1. Part 6 Division 2 (ss 81-82) contains provisions dealing with Internal appeals. Section 80 deals with the making of internal appeals, and relevantly provides:

80 Making of internal appeals

(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made.

...

(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.

1. Section 81 deals with the determination of internal appeals, and provides:

81 Determination of internal appeals

(1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following -

(a) the appeal to be allowed or dismissed,

(b) the decision under appeal to be confirmed, affirmed or varied,

(c) the decision under appeal to be quashed or set aside,

(d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it,

(e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel.

(2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.

Whether a hearing of the OSP70276 costs application should be dispensed with

1. Each of OSP70276 and WHD consents to an order dispensing with an oral hearing of the OSP70276 costs application.
2. We are satisfied that that the issues for determination in relation to the OSP70276 costs application can be adequately determined in the absence of the parties by considering their submissions. Accordingly, we have decided pursuant to s 50(2) of the NCAT Act to make an order dispensing with a hearing in relation to the OSP70276 costs application.

Whether the appeal costs order should be varied

1. Before considering this issue, we have summarised the submissions of the parties.

1. OSP70276 in the OSP70276 appeal costs submissions has made the following submissions:

(1) the OSP70276 costs application is for the Appeal Panel to exercise the discretion afresh under r 38A(2) of the NCAT Rules;

(2) it refers to the principle in Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 (Doppstadt (No 2)) at [17] (Ward, Emmett and Gleeson JJA):

"The usual circumstance in which a court will deprive the successful party of the costs relating to an issue on which the successful party lost is when that issue is clearly dominant or separable: Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 at [64] (Campbell JA). See also Waters v PC Henderson (Australia) Pty Ltd [1994] NSWCA 338; 254 ALR 328 at 330-33 1 (Mahoney JA)."

(3) in re-exercising the costs discretion, the Appeal Panel should give weight to the following circumstances:

(a) given "the weight of the outcome of the decision", it was the successful party;

(b) the second ground of appeal, on which WHD was successful, was not "clearly dominant" in the proceedings as a whole, nor in terms of complexity or time taken in argument;

(c) in terms of quantum, it was also not dominant (as set out in WHD's schedule of damages at first instance which references the AD & B scope of works as $91,805.00 exclusive of GST, and the loss of rent as at 9 September 2023 as $374,324.25 exclusive of GST. The cost of the basement works claimed in ground 4 of the appeal was not quantified, but those works were much more substantial than the works to which the second ground relates and so would have been substantially more costly;

(d) it was but one of four issues and it was wholly successful on the other three issues,

(e) had the appeal been formulated only on the one issue on which WHD was successful it may be inferred that the matter might have resolved without the need for any hearing;

(4) as it succeeded on three of the four grounds of appeal this is "the dominant outcome" and should be reflected in the costs order as sought in the first alternative order in the OSP70276 costs application;

(5) otherwise, the view could be taken that both parties have had some success in the appeal and each party should pay their own costs.

1. WHD in the WHD appeal costs submissions has made the following submissions:

(1) the appeal costs order was appropriate in circumstances in which:

(a) the subject matter of the appeal was four separate and discrete claims for relief. The designations "grounds" or "issues" does not fully capture the fact that each related to a quite distinct claim before the Tribunal below and a quite distinct appellate challenge to the Tribunal's decision on each claim;

(b) the appeal was successful in relation to one of these discrete claims for relief;

(c) the grounds upon which the three other claims were dismissed and, more generally, the respondent's conduct of the appeal militated against the Appeal Panel awarding OSP70276 costs in relation to those claims;

(2) there is no reason to deny it a costs order in respect of appeal ground 2 upon which it succeeded. The Appeal Panel would only do so if it rejected the analysis of the appeal as one involving discrete, separable issues;

(3) as to the other three grounds, the Appeal Panel's exercise of its discretion would be informed by the following matters:

(a) it established errors of law on the Tribunal's part in relation to grounds one and four but the challenges ultimately failed for reasons identified by the Appeal Panel without apparent assistance from OSP70276's submissions;

(b) much of the hearing time was taken up with OSP70276's unsuccessful challenges to its grounds on the basis that they were not on questions of law;

(c) OSP70276's challenges in this regard were not only prolix and time consuming but were raised belatedly at the hearing itself in breach of procedural directions and necessitating it to incur the additional expense of preparing supplementary submissions in reply;

(4) the appeal costs order should not be disturbed in the light of these matters and the New South Wales Court of Appeal's emphasis on impression and evaluation in outcomes involving mixed success: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 (Bostik) at [38] (Beazley, Ipp and Basten JJA).

1. We accept that it is appropriate to exercise the discretion afresh under r 38A(2) of the NCAT Rules in determining the costs of the appeal after taking into account the submissions of the parties.
2. We do not accept that we should give weight to the circumstances in the OSP70276 appeal costs submissions for the following reasons:

(1) "the weight of the outcome of the decision" and "the dominant outcome" on the appeal did not favour OSP70276. As indicated in the appeal decision at [158], there were four separable issues which should be considered separately when determining the costs of the appeal;

(2) the quantum of WHD's claim was not a relevant factor in the determination of the appeal which involved the consideration of four questions of law;

(3) the success of OSP70276 on three of the four contested questions of law was reflected in the appeal costs order whereby we decided that OSP70276 should pay one quarter of WHD's costs of the appeal;

(4) it is not relevant to speculate on an appeal which only involved the issue on which WHD was successful.

1. In exercising discretion afresh under r 38A(2) of the NCAT Rules we see no reason to vary the appeal costs order. The deprivation of costs of the appeal in favour of WHD in respect of three of the four separable issues on which it was unsuccessful gives effect to the principles in Doppstadt (No 2) at [17] and Bostik at [38] regarding outcomes involving mixed success. It follows that the OSP70276 costs application should be dismissed and OSP70276 should pay WHD's costs of the OSP70276 costs application.

Whether the first instance costs order should be varied

1. The determination of this issue involves the consideration of the following two questions:

(1) whether the WHD costs application should be determined;

(2) if so, whether the first instance costs order should be varied.

1. Before considering this issue, we have set out the evidence of WHD and summarised the submissions of the parties.

1. Mr Edwards, who is a partner of DEA Lawyers Pty Ltd and the solicitor of WHD, in the Edwards affidavit annexed the following documents:

(1) the 11 November 2024 decision ([2]) in which the Tribunal relevantly made the following findings:

(a) there were six issues which were separable except for a link between two issues, WHD was successful in respect of two issues and unsuccessful in respect of four issues. One of the unsuccessful issues involved three claims: first, a claim for loss of rent of $11,667.67 per month from 8 January 2021 to the date of the hearing, which was more than $400,000; secondly, a claim for $91,805, or alternatively a work order, for property damage; thirdly, a further claim for loss of rent of $11,667.67 per month from the date of the orders until completion of work on the roof and skylight ([29]-[30);

(b) the monetary claim was the primary aspect of the proceedings, involving claims for $500,000 or more. OSP70276 was successful in the proceedings in respect of all but two issues ([31]-[32]);

(c) a discount of 20% should be applied so that OSP70276 would not be overcompensated. In assessing that discount it had regard to the extent to the successful issues, compared to the unsuccessful issues, required evidence and submissions, both written and oral; the entire proceedings and not just the hearing, since it was considering the costs of the proceedings and not the just the costs of the hearing; and the effect of s 104 of the SSM Act ([33]-[37]);

(2) his letter dated 12 November 2024 to the solicitors of OSP70276 (the 12 November 2024 DEA letter) which relevantly provided:

"We also put you on notice that we intend to argue at the hearing of the appeal that the costs order made by the Tribunal yesterday should be set aside and an order made in lieu thereof by the Appeal Panel. The submissions on what form that order will take will depend upon the Appeal Panel's decision and should be addressed at that time."

1. WHD in the WHD costs submissions has submitted that the Appeal Panel has power to vary the first instance costs order pursuant to s 60(4) and (5) and s 81 of the NCAT Act and referred to Jones v Mega Awesome Kapow Constructions Pty Ltd (No. 2) [2024] NSWCATAP 184 (Jones (No. 2)) at [17]-[18].

1. OSP70276 in the OSP70276 costs submissions has made the following submissions:

(1) the WHD costs application goes well beyond the leave granted by order (5) of the appeal decision;

(2) for the Appeal Panel to vary the first instance costs order, WHD would first need to make a successful application to reopen the appeal. No such application has been made let alone granted;

(3) leave to reopen any matter after judgment has been delivered would require WHD to establish extraordinary circumstances which do not exist here and any application for leave to reopen the appeal case would be vigorously opposed;

(4) WHD did not lodge an amended notice of appeal it which it seeks a variation of the first instance costs order;

(5) WHD in neither the appeal book nor its written or oral submissions referred to the 11 November 2024 decision or an application to vary the first instance costs order;

(6) WHD did not make any submission seeking a variation of the first instance costs order on the hearing of the appeal as foreshadowed in the 12 November 2024 DEA letter.

1. WHD in the WHD costs submissions in reply has made the following submissions:

(1) OSP70276 in the OSP70276 costs submissions takes a technical point that the effect of orders 4 and 5 of the appeal decision was to permit further submissions on the costs of the appeal only and not on the costs orders made below;

(2) costs orders, both at first instance and on appeal, depend upon and await the substantive decisions. This fundamental fact is reflected in their designation as "ancillary orders" under the definition in s 4(1) of the NCAT Act;

(3) in s 60 of the NCAT Act (unaffected in this regard by r 38A of the NCAT Rules), the source of the Appeal Panel's discretionary powers in relation to costs, the expression "costs" is defined in subs 5(b) to include the costs of, or incidental to, the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal itself;

(4) having regard to these matters there is no inconsistency with orders 4 and 5 of the appeal decision in it seeking variation of the costs orders below in conformity with the Appeal Panel's variation of the substantive orders. This is notwithstanding the absence of any expressly pleaded claim for relief in respect of the costs of the proceedings below;

(5) it would be quite contrary to the interests of justice if it were not permitted to agitate for variation of the costs orders below, and contrary to the statutory injunction upon the Tribunal under s 36 of the NCAT Act to facilitate, among other things, the just resolution of the proceedings;

(6) it would also represent a triumph of form over substance in a forum which is expressly subject to statutory injunctions against allowing this to happen. Section 1(d) of the NCAT Act sets out the Act's purpose of, among other things, enabling the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible. Section 38(4) mandates that the Tribunal act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms;

(7) in terms of prejudice to OSP70276 there can be none in circumstances in which it put OSP70276 on notice of its intention to contest the costs orders below in the 12 November 2024 DEA letter.

Whether the WHD costs application should be determined

1. The WHD costs application has been lodged without our leave. It is not encompassed by order (5) of the appeal decision. Rather than dismiss the WHD costs application in limine, we have treated it as an application to reopen the appeal to challenge the first instance costs order.
2. In Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners - Strata Plan No 64807 [2023] NSWCA 188 (Sunaust Properties) the majority of the New South Wales Court of Appeal decided that an Appeal Power had power to reopen its decision to determine an issue it had failed to determine. Basten AJA at [160] (with Meagher JA at [1] agreeing) made the following observations as to the power of the Appeal Panel:

"[160] In the absence of any indication in the Tribunal Act that the Appeal Panel is not able to reopen a decision once pronounced, there will be circumstances in which it may do so and, indeed, circumstances where it should do so. Such a power will fall within the breadth of the procedural powers conferred on it under s 38. Where the Tribunal is satisfied that it has failed to address one of the real issues in the proceedings before it, it may (and perhaps should) reopen the proceedings in order to give effect to the guiding principle set out in s 36 of the Tribunal Act."

1. While we accept that we have power under s 38 of the NCAT Act to reopen the appeal decision as explained in Sunaust Properties at [160], we have decided to refuse the application of WHD to reopen the appeal because the challenge to the first instance costs order is bound to fail.
2. In Jones v Mega Awesome Kapow Constructions Pty Ltd [2024] NSWCATAP 86, the Appeal Panel determined appeals by the homeowner and the builder from decisions of the Tribunal in proceedings commenced by each of them under the Home Building Act 1989 (NSW). The Appeal Panel allowed the homeowner's appeal by reducing the money order in favour of the builder from $78,551.51 to $19,005.40, and dismissed the builder's appeal.
3. In Jones (No. 2), the Appeal Panel relevantly:

(1) noted that on 19 December 2023, after the appeals were commenced, the Tribunal made a cost decision that the homeowner pay the builder's costs of the proceedings at first instance (the costs decision) ([3]);

(2) noted that it sought submissions from the parties as to whether it could consider the costs of the original proceedings without the notice of appeal being amended to include an appeal against the costs decision ([7]);

(3) after setting out the submissions of the parties made a finding that it had power to consider the costs of the original proceedings without the notice of appeal being amended ([17]-[18]) including:

"[17] We have concluded that we have the power to reconsider the costs decision (and if necessary, to set it aside) in circumstances where the decision itself is not challenged, but where its outcome has potentially been undermined by a decision on appeal altering the basis on which the costs decision was made. This is what the homeowner contends is the case. That power is to be found in s 81. The power has to be exercised in a procedurally fair manner, which we have endeavoured to do here. The need for the costs decision to be reconsidered only arose after the result of the appeal was known (and the final outcome's interaction with settlement offers became obvious). This points to utility of the Appeal Panel reconsidering the costs decision, without a formal amendment, as a means of facilitating the just, quick and cheap resolution of the real issues in the proceedings."

1. We respectfully disagree with the finding in Jones (No. 2) at [17] that the Appeal Panel has power to consider a costs decision made in the proceedings at first instance after the commencement of the appeal without the notice of appeal being amended for the following reasons:

(1) the powers conferred on the Appeal Panel in s 81 of the NCAT Act may be exercised "(i)n determining an internal appeal". In the light of the definitions of "internal appeal", "internal appeal jurisdiction" and "internally appealable decision" in ss 4(1) and 32(1), (4) and (5) when read with the definition of "decision" in ss 4(1) and 5, these powers are limited to the particular decision which is the subject of the appeal;

(2) section 81(1)(b), (c) and (d) by their terms only permit the varying, quashing, setting aside, or quashing or setting aside and substituting another decision for "the decision under appeal";

(3) the costs decision is an "ancillary decision" within para (b) of the definition of this expression in s (4) when read with the meaning of "decision" in s 5(1)(a) of the NCAT Act. As such, a separate internal appeal against it may be made pursuant to s 80(1) and (2)(b). Unless an internal appeal is made against it, the powers in s 81 cannot be exercised in relation to the decision.

1. We do not accept that the provisions of the NCAT Act relied on by WHD support the existence of the putative power for the following reasons:

(1) section 3(d) is one of the objects of the NCAT Act, and does not confer any power on the Tribunal;

(2) while it is necessary pursuant to s 36(2)(b) to seek to give effect to the guiding principle in s 36(1) in interpreting s 81, it does not support the existence of a power to make orders in respect of a decision which is not under appeal;

(3) the stipulation in s 38(4) as to the procedure of the Tribunal does not address the existence of the powers of the Tribunal;

(4) while we accept that s 60(4) when read with para (b) of the definition of "costs" in s 60(5) enables the Tribunal to determine the costs in proceedings giving rise to an appeal, this provision does not confer any power on the Appeal Panel to set aside a costs decision which is not the subject of the appeal.

1. In The Owners - Strata Plan No 30691 v Pickard [2024] NSWCATAP 126 (Pickard) at [100], the Appeal Panel found that it was able to and should depart from an earlier decision of the Appeal Panel in circumstances where it was satisfied that its interpretation of a statutory provision was wrong and it had failed to consider another relevant statutory provision.
2. In the light of Pickard at [100], we are satisfied that we are able to and should depart from the interpretation of s 81 of the NCAT Act in Jones (No. 2) at [17] because it is wrong and failed to take into account the definitions of "internal appeal", "internal appeal jurisdiction" and "internally appealable decision" in ss 4(1) and 32(1), (4) and (5) when read with the definitions of "ancillary decision" in s 4(1) and "decision" in ss 4(1) and 5, together with the limitations on the powers in s 81(1)(b), (c) and (d).
3. The WHD costs application is bound to fail as in the absence of an appeal against it we have no power to vary the first instance costs order. It follows that the WHD costs application should be dismissed and WHD should pay OSP70276's costs of the WHD costs application.
4. We note the discretionary factors relied on by OSP70276 against the granting the application of WHD to reopen the appeal based on the lateness of the WHD costs application. In particular, a significant factor against the granting of the application is that WHD has provided no explanation as to why it did not seek leave to lodge an amended notice of appeal or make the WHD costs application in its written or oral submissions for the hearing of the appeal. We do not accept the submission of WHD in the WHD costs submissions in reply that this is a technical point raised by OSP70276. However, as OSP70276 has not identified any prejudice it will suffer by the lateness of the WHD costs application, if we had found that we had power to vary the first instance costs order, we would not have refused in the exercise of our discretion to reopen the appeal on the basis of these factors.

If so, whether the first instance costs order should be varied

1. In view of our decision that the application of WHD to reopen the appeal should be dismissed, this question does not arise for consideration.
2. If we had decided to grant the application of WHD to reopen the appeal, we would have set aside the first instance costs order and remitted the issue of the costs of the proceedings at first instance to the Tribunal as originally constituted for reconsideration in the light of the appeal decision pursuant to s 81(1)(c) and (e) of the NCAT Act. The reconsideration of the costs of the proceedings at first instance and the continuing application of the findings in the 11 November 2024 decision at [29]-[37] would be best undertaken by the Tribunal which has a detailed understanding of the proceedings.

(1) A hearing of the application of the respondent to vary order (4) made on 2 April 2025 is dispensed with.

(2) The application of the respondent to vary order (4) made on 2 April 2025 is dismissed and the respondent is to pay the appellant's costs of the application.

(3) The application of the appellant to reopen the appeal is dismissed and the appellant is to pay the respondent's costs of the application.

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.