YJV v YJW

Statutory framework: s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act)

1. Section 60 of the NCAT Act states: 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.
2. Section 60(1) creates the general rule that each party is to pay their own costs. Section 60(2) gives the Tribunal power to award costs upon it being "satisfied that there are special circumstances warranting an award of costs".
3. In Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81, the NSW Court of Appeal considered the meaning of the term "special circumstances" in s 88(1) of the now repealed Administrative Decisions Tribunal Act 1997 (NSW). While expressed in slightly different terms to s 60 of the NCAT Act, like that provision, s 88(1) of the Administrative Decisions Tribunal Act gave the Tribunal power to award costs "but only if it is satisfied that there are special circumstances warranting an award of costs". At [60], Santow JA held (and Mason P and Brownie AJA agreed) that the Tribunal was in error in failing to conclude that special circumstances applied in that matter. Santow JA observed: "[I]t suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional". That statement has consistently been applied by Appeal Panels of NCAT in determining application for costs under s 60 of the NCAT Act: see for example, Gelder v The Owners - Strata Plan No 38308 [2021] NSWCATAP 109 at [12]; Youssef v NSW Legal Services Commissioner (Costs) [2020] NSWCATOD 115 at [107]-[108]; James v Department of Justice (Corrective Services NSW) (No 2) [2022] NSWCATAP 216 at [6].
4. More recently, in Kaye v The Owners - Strata Plan No 4350 [2022] NSWSC 1386, Basten AJ observed at [70] that the term "special circumstances" in s 60 of the NCAT Act: "[I]s not a term of art. Its scope and operation will depend heavily on the context in which it appears. A particular circumstance which appears to be special in one case may not be so in another. It is not a phrase which readily gives rise to appellate explication."

The Tribunal proceedings

1. In 2017, the Mother appointed her daughters, YKA and YKB, as her enduring guardians and attorneys. In December 2022, shortly after the Brother's return from living overseas for a decade, the Mother revoked those appointments. One month later, the Mother appointed the Brother and a granddaughter to those roles.
2. In January 2023, one of the appellants, YKA, made applications to the Guardianship Division in respect of the Mother, seeking review of the Brother's appointment as the Mother's enduring guardian and attorney.
3. In the hearing to determine those applications, the appellants claimed, and the Brother disputed, that, since moving in to live with the Mother on his return from overseas, the Brother had prevented them from having any contact with the Mother. Before the Brother returned to Australia, each of the appellants had been actively involved in the Mother's life: Reasons for Decision, NCAT, 19 February 2024 (unreported) (Reasons) at [36].
4. The Tribunal found that there was insufficient evidence to support the appellants' claims that the Mother lacked capacity to revoke the 2017 appointments and to appoint the Brother as her enduring guardian and attorney (Reasons at [45],[58],[69]) and that the Brother had subjected the Mother to undue influence: Reasons at [46].
5. On 19 February 2024, following a hearing held over two days, the Tribunal made orders dismissing each of the applications made by YKA. This is the decision under appeal.

The appeal proceedings

1. On 21 March 2024 the appellants filed a notice of appeal.
2. At a directions hearing on 10 April 2024, a differently constituted Appeal Panel listed the appeal for hearing on 22 August 2024 and put in place a timetable for the parties to file and serve submissions. The Brother and the appellants' legal representatives attended that directions hearing. The Appeal Panel gave the appellants and the Brother leave to be legally represented.
3. For ease of reference, we set out below the key dates in the appeal. 10 April 2024 Directions hearing before Appeal Panel 8 May 2024 Date appellants required to file and serve submissions Appellants filed and served submissions 6 June 2024 Date respondents required to file and serve submissions 21 June 2024 Date appellants required to file and serve submissions in reply Appellants filed and served submissions in reply 13 July 2024 Mother dies 21 August 2024 Brother's solicitor Mr Registrar emails NCAT at 17:16 to inform of the Mother's death 22 August 2024 Hearing of appeal Appellants informed of the Mother's death Appellants withdraw the appeal

NCAT is notified of Mother's death

1. In the email sent to NCAT on 21 August 2024 at 17:16, Mr Allen wrote: Registrar, We are aware that these proceedings are listed before the Tribunal for the hearing of an appeal on Thursday 22 August. We have been instructed late this afternoon by [the Brother] to notify the Tribunal that [the Mother] died on 13 July 2024. We are instructed that [the Brother] notified the Tribunal by telephone of the death of his late mother and was advised that further information was required. A death certificate was only received by email to our office late this afternoon. A copy of the certificate is attached. We have not appeared (other than as a witness) and do not have instructions to appear before the Tribunal. We provide this information as a courtesy to the Tribunal.

Submissions

1. The appellants contend that the Brother's conduct in the appeal, specifically his failure to inform them of the Mother's death until the eve of the appeal, constitutes special circumstances which warrant an award of costs. They argue that the Mother's death rendered the appeal futile. They assert that after the Mother's death they incurred significant costs and disbursements.
2. The appellants contend that the Brother should be required to pay their costs, including those incurred before the Mother's death. They point to the evidence, unknown to them before the hearing of the appeal, that before her death the Mother had been hospitalised and her health was in decline. Pointing to the entry on the death certificate which recorded the primary cause of the Mother's death as "urosepsis", they assert that that condition is not one which "occurs suddenly" and it is reasonable to assume that the Brother, a registered nurse, would have been aware for some time before her death that their Mother's health was deteriorating. They assert that had the Brother informed them when the Mother was hospitalised in early May 2024, they could have formulated contingency plans and considered the utility of continuing with the appeal. Instead, "oblivious to the unfolding situation", they continued to prepare for the appeal.
3. The appellants contend that the Brother's "relevant delinquency", namely his failure to inform them of their Mother's death, resulted in them incurring unnecessary costs and warrants costs being awarded on an indemnity basis.
4. The Brother opposes the appellants' application for costs. He claims that he was directed by the Mother not to inform his sisters of her death and not to permit them to attend her funeral service. The Brother said that the Mother was upset to hear that the appellants had commenced an appeal from the Tribunal's decision.
5. The Brother claimed that he notified someone in the NCAT registry of the Mother's death by telephone and was told that "a death certificate was required". He claimed that he did not receive that certificate until 16:55 on 21 August 2024. That certificate was dated 6 August 2024. The Brother claimed that he obtained the death certificate from the funeral director.
6. The Brother contends that his Mother's instruction not to notify the appellants of her death and the absence of a death certificate explains why it was "only possible to formally notify the Tribunal on the afternoon of 21 August 2024". He said there was nothing deliberate or highhanded about his actions. He had no choice but to comply with his mother's wishes.
7. The Brother claims that he was a "passive respondent" in the appeal. Further, he contends that following his mother's death he was grieving and was not focused on the appeal.
8. The Brother claims that he was not aware that the appellants were incurring legal costs in the appeal or could have suffered any financial consequences as a result of his failure to inform them of the Mother's death.
9. In response, the appellants point out that the Brother failed to provide any details of the telephone call he allegedly made to inform NCAT of the Mother's death, including the date he made that call.
10. In addition, they point out that the Brother failed to provide any evidence about when he received a copy of the death certificate. Given the significance of the Mother's death to the appeal, they say it "defies belief" that the Brother failed to notify their solicitor about the Mother's death.

Are there special circumstances which warrant an award of costs?

1. The effect of the Brother's submissions is that his conduct should be excused because, first, he notified NCAT of his Mother's death and, second, his hands were tied because he had been directed by the Mother not to inform the appellants of her death.
2. We reject that submission for these reasons.
3. First, the Brother's claim that he informed NCAT of the Mother's death by telephone is unsupported. NCAT's appeal file contains no mention of that claimed call. Nor does the Brother give any supporting evidence of details of the call, including the date and time he made the claimed telephone call, the name of the officer he claims spoke to him, or any other advice he received on the call. Nor did he provide any telephone records supporting his claim.
4. Second, even if that claim were to be accepted, by his own admission the Brother understood that the appeal would continue until such time as he provided NCAT with a copy of the death certificate. Mr Allen's email to the Registrar reveals that the Brother delayed seeking legal advice about what to do in relation to the appeal given the Mother's death until late in the afternoon the day before the hearing.
5. Third, the claim that the Brother was directed by the Mother not to inform the appellants of her death is also unsupported. In addition, that claim sits uncomfortably with the claim made by the Brother that he notified NCAT of the Mother's death by telephone. It is implausible that the Brother harboured the belief that if he informed NCAT of the Mother's death, NCAT would not pass on that information to the appellants' legal representatives or the other parties, thereby dishonouring the Mother's purported wishes.
6. The explanation given by the Brother for not informing the appellants of the Mother's death is unsupported and unpersuasive. The Brother's conduct unnecessarily disadvantaged the appellants and caused them to incur unnecessary costs. For him to hide the fact of the Mother's death from her two daughters strikes us, to say the least, as unusual and potentially distressing conduct in any circumstances, let alone during the course of litigation directly concerning their mother. That conduct constitutes special circumstances warranting an award of costs for the purpose of s 60(3)(a) of the NCAT Act.

Should the Brother be required to pay costs on an indemnity basis?

Statutory framework and principles

1. By s 60(4)(a) of the NCAT Act, if costs are to be awarded in an appeal, the Appeal Panel may determine by whom and to what extent costs are to be paid.
2. In jurisdictions where "costs follow the event", the successful party is not generally entitled to their costs on an indemnity basis. In Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, commenting on the discretion to award costs on an indemnity basis, Gaudron and Gummow JJ said at [44]: "It may be true in a general sense that costs orders are not made to punish an unsuccessful party. However, in the particular circumstance of a case involving some relevant delinquency on the part of the unsuccessful party, an order is made not for party and party costs, but for costs on a 'solicitor and client' basis, or on an indemnity basis. The result is more fully or adequately to compensate the successful party to the disadvantage of what would otherwise have been the position of the unsuccessful party in the absence of such delinquency on its part." (citations omitted)
3. In White ACT (in liquidation) v G B White [2004] NSWSC 303 at [11], McDougall J said that the term "some relevant delinquency" as used by Gaudron and Gummow JJ in the passage above "does not mean moral delinquency or some ethical shortcoming, but delinquency bearing a relevant relation to the conduct of the case".
4. In Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 801; (1993) 46 FCR 225, Sheppard J at 230-234 discussed the authorities which have considered the principles which govern the exercise of the discretion to depart from the "usual course" of making an order for the payment of costs on a party and party basis. Citing Preston v Preston [1981] 3 WLR 619 at 637; [1982] 1 All ER 41 at 58,, at 230-234 Sheppard J observed that some "special or unusual feature" is required to depart from the usual course and that the categories in which the discretion to award costs on an indemnity basis are not closed.

Submissions

1. The appellants urge us to order the Brother to pay costs on an indemnity basis. They contend that the Brother's failure to inform them of their Mother's death until the eve of the hearing was a "relevant delinquency" in that it:

• was deliberate and high-handed
• caused them unnecessary anxiety, trouble or expense, and
• unnecessarily prolonged the appeal.

1. The Brother disputes that characterisation of his conduct. He said that in failing to notify the appellants of their Mother's death he was acting in accordance with her wishes. Further, he disputes the claim that his conduct was deliberate or highhanded and submits that because he did not obtain a copy of the death certificate until the eve of the appeal, he was "left with no choice".
2. Further, the Brother claimed that he was not aware that the appellants were incurring legal costs, or substantial legal costs, in the appeal.

Consideration

1. The relevant delinquency identified by the appellants was the Brother's failure to notify the appellants of the Mother's death until the eve of the hearing of the appeal.
2. We find that the Brother was probably aware that the Mother's death rendered the appeal futile. He has not suggested otherwise.
3. The Brother's claim that he was unaware that the appellants would have incurred legal costs, or substantial legal costs, in the appeal is inherently implausible and is rejected for these reasons.
4. First, it is a matter of common knowledge that legal representatives charge fees for providing their services.
5. Second, the Brother was aware that the appellants were legally represented in the appeal. He attended the initial directions hearing. At that hearing the appellants were legally represented and the Appeal Panel granted the appellants' application that they be given leave to be legally represented and gave oral reasons for that decision.
6. Third, on 8 May 2024 and 21 June 2024 the Brother was served with submissions and voluminous material prepared by the appellants' lawyers. It is reasonable to assume that he was aware from that material that the appellants' legal representatives were undertaking significant legal work on behalf of the appellants.
7. The Brother deliberately failed to notify the appellants of the Mother's death. His actions resulted in the appeal proceedings being unnecessarily prolonged. As a consequence, the appellants were put to the trouble, anxiety and expense of continuing an appeal which had been rendered futile by the Mother's death.
8. For the reasons outlined above, the facts and circumstances of this appeal warrant the making of an order for payment of costs on an indemnity basis.

Should the Brother be required to pay the costs incurred by appellants before the Mother's death?

1. While it is possible, on the available material we could not be satisfied as the appellants claim that in the intervening period between the filing of the appeal and the Mother's death, the Brother was probably aware that the Mother's death was imminent.
2. For that reason, we have decided not to order the Brother to pay the costs incurred by the appellants for work undertaken before the date of the Mother's death.

Should the Brother be ordered to pay costs in a fixed sum?

1. The appellants seek an order for costs in a fixed sum. In support of that application, the appellants provided a costs schedule prepared by their solicitor (the schedule). That document details the costs and disbursements for work undertaken by the appellants' lawyers in the appeal before and after the Mother's death. The total costs claimed is $21,659.
2. The Brother submits that if, contrary to his submission, costs are awarded we should order that the costs be assessed.

Consideration

1. By s 60(4)(b) of the NCAT Act, if costs are to be awarded, the Appeal Panel "may 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".
2. The principles which govern the exercise of the discretion to fix costs under s 60(4)(b) of the NCAT Act are set out ZXJ v ZXK (no 2) [2023] NSWCATAP 76 at [11]-[16]. Applying those principles, we consider the following matters to be significant: 1. the total amount claimed for costs and disbursements incurred after the Mother's death is relatively modest $11,340; 2. the schedule is sufficiently detailed to enable us to determine whether the costs and disbursement claimed are fair and reasonable; 3. having examined that schedule, we find the claimed costs and disbursements to be fair and reasonable. The Brother did not suggest otherwise; 4. fixing costs will "avoid the expense, delay and aggravation" arising out of the process of assessing costs: Hamod v New South Wales [2011] NSWCA 375 at [817].
3. Taken together those matters warrant the exercise of the discretion to fix the costs payable by the Brother in this appeal. The Brother is to pay the appellants' costs in the sum of $11,340. Fourteen days is a reasonable period in which the costs are to be paid.

Orders 1. Within 14 days the Brother is to pay the appellants' costs in the sum of $11,340.

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: 13 December 2024