Y E Holdings Pty Limited v The Owners - Strata Plan No. 80877

The relevant legal principles

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 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 Rodny v Stricke [2020] NSWCATAP 20 (Rodny) at [112] the Appeal Panel held that the withdrawal of an application, which had been the subject of lengthy preparation and the incurring of significant costs, shortly before the hearing was a matter that constituted special circumstances warranting an order for costs within s 60(2) of the NCAT Act.
4. As to the factor in s 60(3)(e) of the NCAT Act, in BDK v Department of Education and Communities [2015] NSWCATAP 129, 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."

The submissions of the respondent

1. The respondent makes the following submissions: 1. the proceedings were frivolous, vexatious and lacking in substance by reason that: 1. the applicants did not seek leave to amend the orders sought in their interim application at any point except at the time of the hearing. As a result, it was required to spend considerable time and costs in responding to and refuting each order sought by the applicants in the interim application as filed and their further submissions filed on 22 April 2021, a large part of which became irrelevant as a result of the amended order ultimately sought by them at the hearing; 2. the applicants filed submissions, four affidavits, four exhibits and further submissions in respect of the interim application, all of which it had to consider prior to filing submissions and evidence in response before the hearing. The order sought by the applicants at the hearing ultimately removed all aspects of previous orders sought relating to the appointment of a compulsory strata manager for SP80877, which formed a significant part of both parties' submissions and evidence filed in relation to the interim application; 3. the applicants' conduct in the proceedings was vexatious as they constantly shifted the parameters of the orders sought in their interim application whilst simultaneously filing an extraordinary amount of evidence with the Tribunal. This evidence was largely unnecessary in respect of the order finally sought; 4. the proceedings were frivolous as they failed to meet any urgency requirements necessitated by s 231(1) of the SSM Act and that effectively in substance a final order was being sought; 1. the proceedings had no tenable basis in fact and law: 1. for the reasons given by me in making the 4 May 2021 orders; 2. by reason that the order sought at the hearing goes beyond the jurisdiction of the Tribunal. Whilst s 232 of the SSM Act provides the Tribunal with a broad jurisdiction to rectify complaints and settle disputes, the applicants largely sought relief on the basis of the alleged denial of proprietary right to access its lots, a right which is not governed by the SSM Act; 1. the nature and complexity of the proceedings: 1. it is abundantly clear that these proceedings and the circumstances surrounding SP80877 generally are complex and multi-faceted; 2. the complexity of these proceedings and the seriousness of the potential outcome for the respondent if the orders sought in the interim application as filed were to be granted by the Tribunal supports the argument that an order for costs should be granted in favour of the respondent; 3. the respondent had to spend considerable time and costs preparing evidence to support the opposition of the interim application. This complexity could have been significantly reduced if the applicants had pursued the order sought at the hearing on a substantive and final basis rather than requiring the respondent to respond to the interim application.

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

1. I am 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. the applicants abandoned their claim for orders (a) to (c) and (e) of the amended orders outlined in their supplementary submissions which were a substantial part of the relief it claimed in the interim application, and which were the subject of a substantial amount of evidence, at the commencement of the hearing. This is a more cogent reason than found by the Appeal Panel in Rodny at [112] where an application, which had been the subject of lengthy preparation and the incurring of significant costs, was withdrawn shortly before the hearing; 2. the proceedings had no tenable basis in fact within s 60(3)(e) of the NCAT Act as the evidence relied on by the applicants did not establish that there were urgent considerations within s 231(1) of the SSM Act for the making of the order sought at the hearing. In particular, the applicants had been on notice since 10 December 2020 of the likely removal of access to their lots, and of the removal of access to their lots since 19 February 2021, but failed to commence the proceedings until 14 April 2021 and to provide any explanation for this delay.
2. It is unnecessary to consider the other reasons advanced by the respondent as to why there are special circumstances warranting an award of costs in its favour within s 60(2) of the NCAT Act.

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

1. Having 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, I am further satisfied that that the discretion under this subsection should be exercised to award of costs in its favour of the proceedings as agreed or assessed. There is no reason not to make such an award.

Orders

1. I make the following orders: 1. a hearing is dispensed with in relation to the interim proceedings; 2. the applicants are to pay the costs of the respondent of and incidental to the proceedings as agreed or assessed on the basis set out in the legal costs legislation (as defined in s 3A of the Legal Profession Uniform Law Application Act 2014 (NSW)).

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: 05 August 2021