Zhu v Elrem Property No 2 Pty Limited

1. Other directions have been made by the Appeal Panel in relation to costs submissions, which do not need to be set out in full.
2. The landlord has lodged a submission in reply dated 25 March 2025 and also seeks a costs order (as we understand it) of the proceedings before the Tribunal.
3. In an order from the Appeal Panel dated 17 December 2024 the parties were given an opportunity to address whether a hearing could be dispensed with on the question of costs and be determined on the papers. No such submission was made by either party.
4. In an order dated 25 March 2025 and issued to the parties, the Appeal Panel noted that the determination of the costs application would be on the papers after 9 April 2025 and a hearing dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (the Act).
5. The Tribunal is satisfied that a determination on the papers is appropriate and dispenses with the hearing.
6. No further submissions have been received.

1. The parties had a residential tenancy agreement between them which commenced on 4 April 2023. The leased premises was a brand new apartment and the rent was $1000 per week. The tenant paid a bond of $4000 under the tenancy agreement.
2. There were issues during the tenancy which lead to agreed rent reductions for certain periods. However not all issues were resolved by agreement. The issue relevant to the Appeal was the tenant's claim that the developer had not installed curtains by the time the tenancy began; they were subsequently installed on 24 April 2023 but some were short; the short curtains were replaced on 9 May 2023.
3. The tenant filed proceedings 2023/389048 for compensation for issues arising from the curtains, lights and bathroom exhaust fan. This claim was dismissed on 27 November 2023 and is not part of this Appeal.
4. On 4 July 2024 the landlord filed proceedings 2023/387803 for orders terminating the tenancy agreement on grounds of rent arrears. The tenancy ended when the tenant vacated on 22 April 2024.
5. The Tribunal decision, the subject of the Appeal was an order that the tenant full rent arrears in the sum of $8571.40. The tenant disputed this was the full amount owing because there was an agreement between the parties that she would have a 2 week rent credit. An order was made for the release of the full bond to the landlord to apply to the rent arrears order.
6. The tenant appealed the Tribunal's decision by way of Notice of Appeal lodged on 20 August 2024. The hearing of the appeal took place on 16 October 2024 decision and the tenant was successful with the amount of the rent arrears being reduced by $2000.

S 60 NCAT Act

1. As the claim concerned a monetary value of less than $30,000, the applicable costs regime is s 60 of the Civil and Administrative Tribunal Act 2013 (NSW), which provides in essence that each party is to pay its own costs unless there are "special circumstances":
2. Section 60 provides:

(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 ....

1. The Tribunal's power to award costs is discretionary_: Re Minister for Immigration & Ethnic Affairs; Ex Parte Lai Qin_ (1997) 186 CLR 622; [1997] HCA 6.

The appellant's submissions regarding costs of the appeal

1. The appellant submitted that there are special circumstances as follows:

(1) unnecessary disadvantage caused to another party;

(2) unreasonable prolongation of the proceedings;

(3) the relative strength or weakness of the claims made;

(4) frivolous or vexatious nature of the proceedings.

(1) The landlord filed termination proceedings on the grounds of rent arrears, which were dismissed as the Tribunal found there were no rent arrears;

(2) The tenant has always paid the agreed rent under the tenancy agreement;

(3) The landlord's termination application was retaliatory and based on false statements as the landlord's agents were fully aware of the curtain installation dates;

(4) The tenant has suffered days of lost time, stress and additional costs due to the landlord's persistent misconduct which necessitated the appeal proceedings;

(5) The landlord has made multiple false statements misleading the Tribunal.

The respondent's submissions regarding costs of the appeal

(1) The tenant did not succeed in the entire case on appeal;

(2) The landlord disputed the tenant's claim for an additional two weeks' rent free period claiming that the curtains were already installed and provided privacy for the tenant during that time;

(3) As the curtains were installed on 24 April 2023, and only 2 out of 4 were 10mm short, this was not enough for the entire 2 week rent reduction;

1. The landlord claims costs of the Tribunal proceedings:

(1) Filing fee $58

(2) Leverage solicitors $990

(3) Tribunal case preparation and attendance by agent at Tribunal hearing $2240.

1. The effect of s 60 of the Act is that s 60(1) provides that "each party to proceedings in the Tribunal is to pay the party's own costs". However, s 60(2) provides that 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.
2. The following non-exhaustive list of considerations is set out in s 60(3):

(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 the Tribunal considers relevant.

1. Although it common for parties to focus upon whether any of those individual considerations apply, 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 Kurmond Homes Pty Ltd [2014] NSWCATAP 120, adopting what was said in Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [60].
3. We consider the Appeal to be a standard appeal for a tenancy matter. We are satisfied that the landlord's conduct in the Appeal has not caused disadvantage to the tenant nor prolonged the proceedings. In terms of relative strengths of the claims, the defence to the appeal was arguable and could not be said to have no tenable basis.
4. Accordingly we are satisfied that the usual rule under s 60 of the NCAT Act applies and that each party is to pay its own costs. Accordingly the tenant's claim for costs is dismissed.
5. In terms of the landlord's application for costs, it is a claim for costs before the Tribunal, and as such they are not an issue on the Appeal and the application is dismissed.

(1) A hearing on costs is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act NSW 2013.

(2) Each party is to pay its own costs of the Appeal.

(3) The appellant's application for costs is dismissed.

(4) The respondent's application for costs is dismissed.

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.