Zioukin v Lang

Preliminary - extension of time

1. In appeals in relation to residential proceedings, the notice of appeal must be filed within 14 days of the date the Decision was received. This appeal is an appeal from a decision made in residential proceedings, being proceedings under the Residential Tenancies Act 2010 NSW (RT Act)
2. In written submissions, the tenant submitted that the appeal, being an appeal in respect of a costs decision, is an appeal in relation to an ancillary decision of the Tribunal. Section 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) defines "ancillary decision" as 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 decision concerning the awarding of costs in proceedings. The tenant submitted therefore that appeals in relation to ancillary decisions was 28 days, not 14 days, as a consequence of which his Notice of Appeal had been filed within time.
3. Having regard to the terms of rule 25 of the Civil and Administrative Tribunal Rules 2014 (Rules) we disagree. We see no reason why an appeal in relation to a costs decision made in residential proceedings may be filed in any period other than the 14 days required for any other decision in respect of residential proceedings.
4. The principles governing extensions of time are well-established and were considered in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 and confirmed in Di Salvo v Leung [2014] NSWCATAP 44. In summary, the considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a notice of appeal may be summarised as follows: 1. the length of the delay; 2. the reason for the delay; 3. the extent of any prejudice suffered by the respondent; and 4. the appellant's prospects of success, that is usually whether the applicant has a fairly arguable case.
5. We have decided that there should be an extension of time. That is because the length of delay was short, being three days (two of which were a weekend), and the tenant has a medical condition which affects his capacity to prepare for litigation in a timely and efficient manner. We consider that these matters outweigh any prejudice to the landlord and the tenant's poor prospects of success.
6. Accordingly, we have extended the time for filing the Notice of Appeal to 11 July 2022.

Background

1. The respondent was the landlord and the appellant the tenant of premises in Oatley pursuant to a residential tenancy agreement. On 31 August 2020, the landlord served a no grounds termination notice under s 85 of the RT Act, seeking possession of the premises on 30 November 2020.
2. The tenant failed to give possession of the premises to the landlord and as a result on 1 December 2020 the landlord filed an application seeking orders for termination and possession.
3. The tenant commenced various proceedings resisting eviction from the residential premises. The procedural history of this tenancy is set out at [5] of the Decision. The tenancy ended when a warrant for possession was finally executed in May 2022.
4. The landlord filed an application for costs on 4 May 2022. Written directions were ordered for the filing of submissions including whether the Tribunal should dispense with a hearing and determine costs on the papers.
5. In summary, the landlord sought her legal costs incurred for succeeding in her application for termination and possession in the sum of $3,547.50. The landlord had retained the services of solicitors to assist with the preparation of the various hearings and the costs of the firm of solicitors were sought to be recovered as a lump sum.

The Decision

1. The landlord submitted that special circumstances were established within the meaning of s 60 of the NCAT Act because the tenant unreasonably prolonged the proceedings and because of the nature and complexity of the proceedings.
2. For the reasons explained in the Decision, that submission was accepted.
3. The reasons for Decision are detailed and thorough, and refer to the relevant authorities. The Tribunal concluded: 28 The landlord submits that special circumstances are established because the tenant continued to bring fresh applications before the Appeal Panel, the District Court and the Supreme Court and that all applications, other than the set aside application, were unsuccessful. The landlord submits this unnecessarily disadvantaged her because it prolonged the proceedings by about 20 months (s60(3)(b) of the CAT Act). I am satisfied that the tenant unnecessarily prolonged the proceedings by continuing to appeal decisions to the Appeal Panel of the Tribunal, the District Court and the Supreme Court. I conclude that all appeals were unmeritorious as all appeals were dismissed, although I have not been provided reasons for decision other than the Appeal Panel's reasons. I note that the tenant even appealed interlocutory decisions, such as the Tribunal's decision to grant the landlord's application for legal representation. I have had regard to the Appeal Panel findings which stated that there was no clear basis for the allegation of denial of procedural fairness at [p13); and that all nine grounds of that appeal were dismissed. 29 I find that the tenant's multiple applications and appeals did require the landlord to retain solicitors as she was no longer able to address the complexity and sheer volume of applications herself. In addition, I find that the tenant's attempt to prolong the proceedings by asking for adjournments at every hearing event made each hearing event more complex than it needed to be. I note that each request for adjournment was refused, including the adjournment request brought on 22 April 2022. Reasons for the refusal were published in substantive reasons It appears that every hearing event was accompanied by a request for adjournment, and almost all were refused due to lack of relevant medical evidence accompanying the request for adjournment. On balance I find that it was necessary for the respondent to incur additional costs to defend adjournment applications that were brought by the tenant routinely before every hearing date. I am satisfied that the conduct of the tenant has unreasonably prolonged the proceedings and or in the alternative that the conduct of the tenant in this respect did unnecessarily disadvantage the landlord. 30 In my substantive findings published on 22 April 2022, I arrived at findings that the landlord has established a real rather than a perceived prejudice by reason of the tenant's prolonged stay in the property and that the landlord was suffering loss and damage as she was unable to place the property on the market by reason of the tenant's continued occupation of the premises, because the premises needed to be repaired and renovated before being sold after her recent bereavement. 31 I am satisfied that, in applying the legal principles in CPD Holdings Pty Ltd was The Bathroom Exchange v Baguley [2015] NSWCATAP 21 to this case, it would not be appropriate to order each party to pay its own costs of the proceeding. 32 The Tribunal is satisfied that the landlord has established special circumstances. The Tribunal is further satisfied that the actions of the tenant have disadvantaged the landlord and have caused the landlord to incur legal expenses. It is appropriate that the tenant should pay the landlord's costs in the stated sum of $3547.50 immediately. 33 The overriding principle is that the order for costs is fair and just in all of the circumstances and the Tribunal has a broad discretion to ensure such a result. Accepting the submissions for the landlord, I am satisfied that the landlord has established special circumstances within the meaning of s 60 of the CAT Act. I find that the landlord should be compensated for the cost of the application.

Grounds of Appeal

1. The notice of appeal raises 12 grounds of appeal 11 of which are described as errors of law.
2. The first ground of appeal is that the Tribunal made an error of law by making factual findings contrary to evidence that the parties would be put to unnecessary costs if a hearing on costs were held. The tenant says that in this respect he was denied procedural fairness in contravention of s 38 of the NCAT Act, in that a hearing was not held to determine costs.
3. The second ground of appeal was that the Tribunal failed to give adequate reasons for the Decision.
4. The third ground of appeal was that the Tribunal made an error of law on the face of the record by taking into account that the tenant unnecessarily prolonged the proceedings by appealing to the District Court of NSW.
5. The fourth ground of appeal was the Tribunal made an error of law by failing to exercise its discretion judicially by not having regard to the applicable principles in exercising its discretion and by taking into account irrelevant considerations.
6. The fifth ground of appeal was the Tribunal made an error of law by failing to exercise its discretion judicially, by not having regard to the applicable principles in exercising its discretion and by not taking relevant considerations into account in concluding as to who unnecessarily prolonged the proceedings or the resolution of proceedings by about 20 months.
7. The sixth ground of appeal was that the Tribunal made an error of law on the face of the record by making a finding about the tenant's appeal of the interlocutory decision to grant the landlord's application for legal representation that "there was no clear basis for the allegation of denial of procedural fairness at [p 13]; and that all grounds of that appeal were dismissed".
8. The seventh ground of appeal was the Tribunal made an error of law by failing to adequately explain its reasoning process for finding that the tenant's conduct in bringing adjournment applications unnecessarily disadvantaged the landlord.
9. The eighth ground of appeal was that the Tribunal made an error of law by failing to adequately explain its reasoning process for finding that the tenant's conduct in bringing adjournment applications unreasonably prolonged the proceedings.
10. The ninth ground of appeal was that the Tribunal made an error of law by failing to give the tenant an opportunity to be heard concerning the lump sum question.
11. The tenth ground of appeal was that the Tribunal made an error of law by failing to discount the lump sum.
12. The eleventh ground of appeal is that the Decision should be set aside because the landlord made misleading submissions that "affected" the Decision. In his grounds of appeal the tenant states that particulars of this ground will be provided. The tenant told us at the appeal hearing that these particulars were set out in submissions of 10 October 2022.
13. The twelfth ground of appeal is that the Tribunal made an error by allowing costs "to assist with the preparation of the various hearings" (at [6]). If any costs should have been awarded, that would be those that assisted with the preparation of the only hearing on 22 April 2022.

Nature of an appeal

1. Section 80 of the NCAT Act sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).

A question of law

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exhaustive list of questions of law as follows: 1. whether there has been a failure to provide proper reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether a wrong principle of law had been applied; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. whether the Tribunal took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision is so unreasonable that no reasonable decision-maker would make it.
2. In Prendergast the Appeal Panel also stated at [12] that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any considerations of procedural fairness to the respondent that might arise).
3. We have undertaken that exercise. In our view, questions of law are only raised in the first, second, seventh, eighth and ninth grounds of appeal. The first and ninth grounds of appeal raise issues of procedural fairness. The second, seventh and eighth grounds of appeal raise the issue of the adequacy of the Tribunal's reasons. These are all questions of law.

Leave to appeal

1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
2. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at 84 that: Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) Issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
3. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].

The tenant's submissions

1. The tenant's written submissions were respectively filed on 5 October 2022 (34 pages), 7 October 2022 (239 pages) and 10 October 2022 (34 pages).
2. Brief submissions were also set out in the Notice of Appeal.
3. In addition, the tenant made oral submissions at the appeal hearing. We did not consider that his oral submissions amplified his written submissions in any material way.

The landlord's submissions

1. The landlord did not file a Reply to Appeal. She also told us that she had long since stopped reading documents the tenant sent her, saying she did not have the time to read hundreds of pages of materials or the resources to print them.
2. The landlord did rely on an email to the Tribunal dated 21 July 2022 which sets out her position in relation to the appeal. That document relevantly states: Today I have received notification that Andre Zioukin has filed an appeal on the 24 June 22 order which awarded me costs. This is an unbelievable situation that he has been allowed to appeal again. January 2020 is when we first came to NCAT and this person has abused the Tribunal system. He has been allowed to personally attack me and has vexatiously litigated against me all allowed by NCAT. He continues to litigate against me and has taken the 90-day eviction all the way to the Supreme Court at a cost to me of approximately $35000 due to having to hire lawyers & barristers. Our last hearing on the 21 June 22 at the Supreme Court, where Mr Zioukin didn't even turn up, did continue as a Judge finally saw through all of his attempts to adjourn each and every hearing claiming illness. Finally, a judge stated that he holds no validity to Mr Zioukin's medical certificate and the hearing continue where I was awarded all costs & Mr Zioukin's case was dismissed again. Mr Zioukin is a law student and does not hold down a job. He has such an unfair advantage. I have a business to run and a young son to look after and being a widow, I am doing it all alone. I can not afford to keep taking time off work to attend 50 or more hearings that we have had. How is this person stopped. I have had to involve the police as he has turned up at my own home (even though lawyers were acting for me), harassed via mobile & harassed via email. No charges have been laid however the police have given me an event number as they feel it is not yet criminal but it is definitely harassment. How do I stop this person. I can't afford lawyers for an NCAT hearing as he is also appealing the Supreme Court Case & as he has no job I am not likely to re coup any money.
3. In addition to that document, the landlord also filed a copy of the submissions she provided to the Tribunal in support of her application for costs.
4. In oral submissions, the landlord referred to her distress at the protracted nature of the litigation she had had to prosecute and to endure in relation to a tenancy where the notice of termination relied on was dated 31 August 2020.
5. Otherwise, the landlord agreed with the Decision for the reasons given by the Senior Member.

Questions of law

1. We commence our consideration of the grounds of appeal by noting that the documents filed by the tenant were over 300 pages in length.
2. In Liang v University of Technology, Sydney [2018] NSWCATAP 285, the Appeal Panel stated it is not necessary to make findings on every argument or every submission, particularly where the arguments advanced are numerous and of varying significance, and are often unsupported by any evidence at all, and we have not done so: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443. This is particularly so where, as is the case here, the submissions are voluminous and lack substance. We do not propose to make findings on every argument or every submission.
3. Turning now to the tenant's questions of law, as noted above, questions of law are only raised in the first, second, seventh, eighth and ninth grounds of appeal.

The first and ninth ground of appeal - denial of procedural fairness

1. The question of law raised in the first and ninth grounds of appeal is that the tenant was denied procedural fairness.

First ground of appeal

1. In relation to the first ground of appeal the tenant submits: [The Tribunal] made an error of law by making factual findings contrary to evidence that the parties would be put to unnecessary costs if a hearing on costs were held. Both parties were unrepresented, as the landlord confirmed, and neither party would spend any costs. Nevertheless, NCAT used this as a consideration in dispensing with the hearing. As a result, the discretion miscarried, and the tenant was denied procedural fairness in contravention of section 38 of the Civil and Administrative Tribunal Act 2013.
2. The substance of this ground of appeal is that the Tribunal erred in failing to hold a hearing in relation to costs.
3. The Decision records that the tenant submitted that in order to limit his submissions to a reasonable number of pages (being five pages) he wished to make oral submissions at a hearing.
4. The landlord consented to the issue of costs being determined on the papers and without the need of the parties to appear in person.
5. The Tribunal stated in the Decision that: 24. In this case, the parties have had an opportunity to make submissions requesting a hearing on costs. I have considered both parties' submissions. The tenant has not indicated what, if any, additional submissions he may make if an oral hearing on the question of costs would be granted. I am satisfied that the issue of costs can be adequately determined in the absence of the parties by considering the parties' written submissions. In my view, the parties would be put to unnecessary costs if a hearing on costs were held. 25. The order under s 50(1)(c) of the NCAT Act has accordingly been made
6. The tenant submits that the error was the Tribunal finding that the parties would be put to unnecessary costs if a hearing were held, when both parties were unrepresented and "as the landlord confirmed", neither party would "spend any costs".
7. We would not allow the appeal on the basis of the first ground of appeal.
8. In our view the tenant overlooks the costs of parties in attending the Tribunal for a hearing, missing work, and other costs occasioned when a party attends a hearing at the Tribunal.
9. We further note that the usual practice of the Tribunal is, where costs are to be determined as a separate issue, to consider any costs application "on the papers" and without a hearing. That said, the Tribunal may only dispense with a hearing if it is satisfied the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal (NCAT Act, s 50(2)).
10. At the appeal hearing, and in his written submissions of 10 October 2022, the tenant further submitted that the application for costs "was supposed to be brought immediately after the proceedings finished on 22 April 2022", but the landlord did not do so until 4 May 2022. The tenant submitted that the Tribunal failed to consider the lateness of the application, although he did not state what would be the consequence of that failure. We assume he considers that it was an error the nature of which requires the Decision to be set aside.
11. In this respect the tenant relied on the Tribunal's Consumer and Commercial Division Guideline August 2017, "Costs Who pays for the costs of running a case?". The Guideline states at [13]: When should a party apply for costs? 13. A party may apply for costs when: a) They lodge an application; b) Another party has failed to comply with a Tribunal order c) At a final hearing or immediately after a decision is made.
12. The Tribunal Guidelines provide guidance to parties on specific divisional issues; in other words, the Guidelines are not a source of rules. The Tribunal's rules and procedures appear in the NCAT Act, the Civil and Administrative Tribunal Regulation 2013 (NSW) and the Rules.
13. In any event, the language of the Guideline is permissive. An application costs may be made immediately after a decision was made, but may also be made at other times.
14. There is no substance in this ground of appeal.

Ninth ground of appeal

1. In relation to the ninth ground of appeal, the tenant submits that the Tribunal made an error of law by failing to give an opportunity to the tenant to be heard concerning the lump sum question.
2. This submission is misconceived. Not only does the Decision refer to the tenant's submissions on the issue, we were provided with a copy of the submissions the tenant actually submitted to the Tribunal in which he refers to the landlord's application for costs to be awarded in the lump sum of $3,547.50.
3. We are satisfied that the tenant was given an adequate opportunity to be heard on the question of whether costs should be awarded as a lump sum.
4. We would not allow the appeal on the basis of the ninth ground of appeal.

The second, seventh and eighth grounds of appeal - inadequate reasons

1. By way of general introduction, we note that the principles on this issue were discussed by the Court of Appeal in NSW Land and Housing Corporation v Orr [2019] NSWCA 231; a decision which has been subsequently followed on a number of occasions by the Appeal Panel, see for instance Carbery v Warringah Rugby Club Ltd [2021] NSWCATAP 153 at [19].
2. To paraphrase the principles referred to in Orr and Carbery, the relevant principles are: 1. the extent and content of the reasons required will depend upon the particular case and the issues under consideration; 2. the duty does not require a court or tribunal to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings; it is essential to expose the reasoning on a point critical to the contest between the parties: Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 at [58]. 3. in the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard; 4. the standard is not one of perfection; 5. the quantity (or detail) of reasons, necessary for those reasons to be adequate may vary both with the nature of the decision maker, i.e. whether or not it is a court of tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided;
3. In Orr Bell P (as the Chief Justice then was), with whom Ward JA (as the President then was) agreed, noting that: 69. An important question which is raised by the present case concerns the detail of reasons required of NCAT for a discretionary decision, particularly bearing in mind that there is no right of appeal from the Tribunal's decision other than on a question of law (although a broader appeal may be permitted with leave of the Appeal Panel): see [30] above. … 76. What constitutes adequate reasoning on the part of a tribunal is also informed, in my opinion, by statements from well-known administrative law decisions relating to the limits of judicial review and the need for practical as well as principled restraint in that context: … 77. These principles include the following: (i) "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole": … (ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: … (iii) the reasons must be read fairly and as a whole: … (iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: … (v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: … .
4. We consider that the Tribunal conformed with the expectation to provide reasons that surpassed the minimum acceptable standard. The structure of the Decision was entirely orthodox, and the Senior Member set out the relevant principles to be applied and made relevant findings of fact in coming to her conclusion to grant costs.
5. We do not consider that the reasons of the Tribunal were inadequate for the reasons submitted by the tenant.

The second ground of appeal

1. The second ground of appeal is that the Tribunal made an error of law by stating in [26] "emphasis added" without adding any emphasis.
2. True it is the Tribunal did not add any emphasis. But it is clear that what the Tribunal was seeking to emphasise was that s 60(2) provided that costs could only be awarded if there were special circumstances warranting an award of costs.
3. We do not consider that there is any substance in this ground of appeal and we would not allow the appeal on this basis. This is an example of the tenant analysing the Tribunal's reasons with a "fine tooth-comb".

The seventh and eight grounds of appeal

1. These grounds can be considered together.
2. In relation to the seventh ground of appeal the tenant submits that: [The Tribunal] made an error of law by failing to adequately explain its reasoning process for finding that the tenant's conduct in bringing adjournment applications unnecessarily disadvantaged the landlord. Despite that, this finding cannot stand because of the underlying errors of law on the face of the record: That each request for the adjournment was refused. That the landlord had to incur additional costs to defend adjournment applications rather than one adjournment application.
3. In relation to the eighth ground of appeal the tenant submits that: [The Tribunal] made an error of law by failing to adequately explain its reasoning process for finding that the tenant's conduct in bringing adjournment applications unreasonably prolonged the proceedings. Despite that, this finding cannot stand because it does not follow from the other findings made by the [The Tribunal] in this decision: The tenant "attempted to prolong" rather than "prolonged" the proceedings. When the tenant's adjournment application was successful, in the absence of an explanation, it follows that it could not have unreasonably prolonged the proceedings.
4. We do not consider that either of these grounds are supported by any evidence. Indeed, the Decision includes a detailed chronology which self-evidently demonstrates how the tenants conduct prolonged the process concluding in May this year when a warrant for possession was executed. We do not consider that there is any substance in these grounds of appeal and we would not allow the appeal on the basis of either ground. These are further examples of the tenant analysing the Tribunal's reasons with a "fine tooth-comb.

The other grounds of appeal

1. The remaining grounds (namely the third, fourth, fifth, sixth, tenth and eleventh ground) of appeal all require a grant of leave.

The third ground of appeal

1. The third ground of appeal is that: [The Tribunal] made an error of law on the face of the record by taking into account unnecessarily prolonged these proceedings by appealing them to the district court. No appeal of these proceedings to the district court was ever made. As a result, the discretion miscarried.
2. We will accept that the tenant did not make any appeals to the District Court or make any relevant applications to that Court. However, we consider that, consistent with Orr, there should be a degree of tolerance for what appears to looseness in the language of the Tribunal and unhappy phrasing of the Tribunal's thoughts. Here we note that there was material before the Tribunal indicating that the tenant had been involved with (unrelated) proceedings in the District Court attention to which may have impacted upon progress in the proceedings between the parties in the Tribunal.
3. We would not grant leave to appeal in respect of this matter.

The fourth and fifth ground of appeal

1. These grounds can be considered together.
2. The fourth ground of appeal is that: NCAT made an error of law by failing to exercise its discretion judicially, by not having regard to the applicable principles in exercising its discretion and by taking the following irrelevant considerations in concluding that the tenant unnecessarily prolonged the proceedings by about 20 months: That the tenant appealed respective decisions to the appeal panel and Supreme Court While the proceedings or respective decisions are stayed they are not run and so cannot unnecessarily prolong the proceedings; when that happens, appeal proceedings are run and not the proceedings below I could not find a precedent in the last several centuries where an appeal above would give rise to indemnity costs (being an equivalent of special circumstances in [the Tribunal]) below (as opposed to the other way around), and neither could the [the Tribunal]) as no authority was cited for this proposition. Any such finding is contrary to the public policy It is contrary to public policy that the decision-maker below could penalise a party (that has a right to appeal) for bringing an appeal above by costs orders when none are normally paid or by ordering indemnity costs proceedings below because the party appealed their decision.
3. The fifth ground of appeal is that The Tribunal: made an error of law by failing to exercise its discretion judicially, by not having regard to the applicable principles in exercising its discretion and by not taking following relevant consideration into account in concluding as to who unnecessarily prolonged the proceedings or the resolution of proceedings by about 20 months: The landlord failed to comply with [Tribunal] orders which resulted in successful appeals by the tenant and that the landlord failed to appear. These events resulted in a set-aside, an appeal and another set-aside before the matter was finally resolved in October 2022.
4. The reference to 20 months' delay so strongly objected to by the tenant appeared in the landlord's submission to the Tribunal, and the submission was repeated in the Decision. The Tribunal did not in terms accept there was a 20 month delay, although it did accept that the appellant unnecessarily prolonged the proceedings.
5. We consider that the Tribunal was justified in coming to that conclusion. Taking the view of developments in the proceedings most favourable to the tenant it is clear that the order for possession made in October 2021 was not able to be enforced until May 2022 by reason of the tenants appeal to the Appeal Panel (which was dismissed in January 2022 ) and appeal to the Supreme Court. Those matters alone justify the Tribunal's conclusion.
6. We see no substance in this ground of appeal.

The sixth ground of appeal

1. The sixth ground of appeal is that: [The Tribunal] made an error of law on the face of the record by making a finding about the tenant's appeal of the interlocutory decision to grant the landlord's application for legal representation that "there was no clear basis for the allegation of denial of procedural fairness at [p 13]; and that all grounds of that appeal were dismissed". This appeal did not result in a stay of the interlocutory decision. It came before an appeal member already after 22 April 2022, at which point it became futile. The tenant, acting reasonably, discontinued the appeal for these reasons. The appeal was not decided. None of its grounds was dismissed. The appeal was withdrawn. By taking into account incorrect factual findings, the [Tribunal's] discretion to award costs to the landlord miscarried.
2. In his submissions of 10 October 2022, the tenant submitted that this ground was self-explanatory. We disagree.
3. Furthermore, this atomistic approach is another example of the tenant analysing the Tribunal's reasons with a "fine tooth-comb".

The tenth ground of appeal

1. The tenth ground of appeal is that the Tribunal made an error by failing to apply a discount to the lump sum.
2. The Decision reveals that the Member actively turned her mind to that issue, acknowledging at [36] that the courts have typically applied a discount in assessing costs on a gross sum basis. However, for the reasons set out at [37] and [38] she declined to do so, finding that she was satisfied that it was reasonable to order the lump sum as sought by the landlord.
3. We see no error in the Tribunal's approach or in its conclusion.

The eleventh ground of appeal

1. The eleventh ground of appeal is that the Decision should be set aside because the landlord made misleading submissions that "affected" the Decision. In his grounds of appeal, the tenant states that particulars of this ground will be provided.
2. The particulars said to be relied on were set out in the tenant's submissions of 10 October 2022 where the tenant states: The landlord was aware that the tenant did not appeal the landlord's proceedings to the district court; however, the landlord chose to repeat rather than correct the erroneous statement of the Senior Member. "Only one appeal was successful, which was on 21 June; since then every appeal and adjournment has been dismissed" - Ms Lang fails to mention her applications that were either withdrawn or dismissed. This statement is also misleading because, at the time of writing, only one appeal was successful, and one was dismissed. "Mr Zioukin has constantly & consistently delayed proceedings", etc. - is a misleading statement. Further, if the appellant knew Senior Member decided that this was the only arguable issue (concerning special circumstances), the appellant would have made specific submissions regarding that. "All procedures have been followed by myself and the managing agent" is a misleading statement. The landlord breached several NCAT orders, including the order of the NCAT appeal panel that each party has to provide submissions of both parties in the cost proceedings under appeal. The landlord communicated with the tribunal without putting the tenant on copy while aware that she should do that. Mr Zioukin has been unsuccessful in all appeals with NCAT since 25 October 2021 - repetitive misleading statement - at the time of writing since 25/10/2021, the appellant was only unsuccessful in one appeal. "The delays in these proceedings have been brought about by Mr Zioukin's appeals to the Supreme Court and the appeal panel and the appeal panel none of which have been successful" is an untrue statement because one of the appeals was successful. The supreme court appeal has not been decided at the time of writing. For completeness, there were also the following misleading omissions: Landlord's chronology Under 6/1/21, it fails to mention that the tenant proved that the hearing started earlier than the appointed time. It further fails to mention that the landlord failed to provide the tenant with the submissions in opposition to the tenant's set aside application contrary to the NCAT orders. It falls to mention that the landlord failed to appear at the hearing, and the tenant was excuse from appearing. The landlord's non-appearance resulted in a set-aside application filed by the landlord before the hearing on 25 October 2022 took place. 19 1509802 311870210 5 April 2022 - fails to mention that the leave was given to obtain legal advice or representation over the tenant's objections and without his application, that it was adjourned until 25 May 2022 and the landlord expedited it with NCAT without putting the tenant on copy
3. These "particulars" in our view are adequately considered in the other grounds of appeal, or are otherwise submissions which are not necessary to consider for the purposes of the appeal: for instance, the landlord's chronology fails to mention that leave was given to obtain legal advice or representation over the tenant's objections.
4. There is no substance in this ground of appeal.

The twelfth ground of appeal

1. This ground is set out above. In summary, the tenant appears to be submitting that of the costs actually ordered, some related to costs of another appeal to the Appeal Panel and/or costs incurred in the Supreme Court.
2. This is factually incorrect, as an examination of the relevant fee note demonstrates. All the work relates to the landlord applying for an extension of time in which to apply for a warrant for possession, preparation of submissions and a hearing in relation to that issue, and the subsequent execution of the warrant.
3. There is no substance in this ground of appeal.

Conclusion

1. To the extent that the appeal raises errors other than questions of law, we are not satisfied that any ground or error involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result. Accordingly, leave to appeal with respect to the third, fourth, fifth, sixth, tenth and eleventh grounds of appeal is refused.

Orders

1. The Appeal Panel orders: 1. The time for filing the notice of appeal is extended to 11 July 2022. 2. The appeal is otherwise 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. 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: 20 October 2022