Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Paterson v BRK Projects Pty Ltd [2021] NSWCATAP 91 Hearing dates: On the papers Date of orders: 15 April 2021 Decision date: 15 April 2021 Jurisdiction: Appeal Panel Before: L Pearson, Principal Member D Robertson, Senior Member Decision: 1. Under Section 50(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), a hearing in respect of the respondent's application for the costs of the appeal is dispensed with. 2. The respondent's application for the costs of the appeal is dismissed. Catchwords: COSTS – Special circumstances Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Paterson v BRK Projects Pty Ltd [2021] NSWCATAP 1 Category: Costs Parties: Michael Paterson (First Appellant) Sarina Locke (Second Appellant) BRK Projects Pty Ltd (Respondent) Representation: Counsel: M Dawson (Appellants) D Hand (Respondent) Solicitors: Maguire & McInerney Lawyers (Appellants) William Cotsis & Associates (Respondent) File Number(s): 2020/00370710 (AP 20/14819) Publication restriction: None Decision under appeal Court or tribunal: Civil & Administrative Tribunal Jurisdiction: Consumer & Commercial Dvision Citation: N/A Date of Decision: 2 March 2020 Before: D Goldstein, Senior Member File Number(s): HB 19/24356 REASONS FOR DECISION 1. 1 The appellants appealed against costs orders made in relation to proceedings which had otherwise been resolved by consent orders. The appeal was dismissed by the Appeal Panel on 7 January 2021: Paterson v BRK Projects Pty Ltd [2021] NSWCATAP 1. 2. In that decision orders were made permitting the respondent to file written submissions in respect of costs and the appellants to respond. The respondent filed submissions on 1 February 2021 seeking an order that the appellants pay its costs of the appeal. The appellants filed submissions on 22 February 2021 opposing an order that they pay the costs of the respondent. The respondent filed a submission in reply on 5 March 2021. 3. Both parties accepted, and we are satisfied, that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions. Accordingly, we will make an order pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) dispensing with a hearing. 4. Section 60 of the NCAT provides: 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. (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— 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. Although rules 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) provide exceptions to the rule laid down in s 60, the respondent did not submit that those rules were applicable in this case. It is, accordingly, necessary, in order for the respondent to obtain a costs order, that it establish that there are special circumstances. 2. The foundation of the respondent's submissions was set out in paragraphs 3 and 5 of its written submissions which were as follows: 3. The legal issues raised in the appeal were complex, and required the appellant to obtain legal advice and representation. 5. Here, it would have been very difficult for a person who was not a lawyer to have prepared the appeal, and to have provided meaningful submissions to the Appeal Panel on the legal issues that arose for consideration: see Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [14]. 1. In Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [14] the Appeal Panel held: 14 The grounds of appeal related to the meaning of the contract. While the appellant was unsuccessful, there was a real issue as to how the contract should be interpreted. It would have been difficult for a person who was not a lawyer to have given meaningful submissions on the proper construction of the contract. The decision of both parties to instruct lawyers was understandable given the nature of the legal dispute and the amount of money involved. 1. The appellants submitted that none of the relevant considerations set out in s 60(3) obtained. The appellants submitted: 3.9 Here, none of the relevant considerations obtain. Neither the subject matter of the Appeal nor the Appellants' conduct of it attract the descriptor of 'special circumstances': an appeal from a costs order based upon an unaccepted Calderbank Offer is 'ordinary' and does not qualify as 'out of the ordinary' [see Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [60] per Santow J], and the granting of leave for legal representation does not in itself constitute special circumstances (see Rice v JR & SD Farmer t/a Urban Bespoke Homes (No 2) [2021] NSWCATAP 2). To hold otherwise would be to deny the legislative purpose of the need to establish of 'special circumstances'. 1. In its reply submissions the respondent submitted: 3. …Here, as previously submitted by the Builder, those special circumstances were the nature and complexity of the appeal, which required the Appellant to retain solicitors and counsel, and the fact of its success on the appeal. Contrary to the appellants' submission (at [3.9]), the recognition of those factors as "special circumstances" warranting a costs order in the circumstances of this case would not deny the legislative purpose of such a requirement. Consideration 1. In Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 Santow JA (with whom Mason P and Brownie AJA agreed) stated, at [60], in relation to the question whether special circumstances existed: For this purpose, it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional. While a finding of "serious unfairness" is not prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration. 1. While we accept that the appeal raised issues of some complexity, we do not consider that those issues were so complex as to constitute special circumstances in the sense addressed in Megerditchian v Kurmond Homes. 2. The Appeal Panel was much assisted by the submissions, both written and oral, of the respondent's legal representatives, but we do not consider that the issues were so complex that a lay person, unassisted by lawyers, could not have achieved the same result. 3. The other factor referred to by the respondent in its reply submissions was "the fact of its success on the appeal". Clearly the mere fact of success on an appeal could not constitute special circumstances, or s 60 would have no operation. 4. Accordingly, we are not persuaded that special circumstances exist in this case and the respondent's application for costs is dismissed. 5. The orders of the Appeal Panel are: 1. Under Section 50(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), a hearing in respect of the respondent's application for the costs of the appeal is dispensed with. 2. The respondent's application for the costs of the appeal 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. 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: 15 April 2021