Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Neighbourhood Association DP No 285853 v Kannapiran (No 2) [2021] NSWCATAP 206 Hearing dates: On the papers Date of orders: 9 July 2021 Decision date: 09 July 2021 Jurisdiction: Appeal Panel Before: T Simon, Principal Member S Goodman SC, Senior Member Decision: (1) Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW), dispense with a hearing on the question of costs. (2) The appellant's application for costs of the appeal is dismissed. Catchwords: COSTS – costs on appeal – where party given leave to be legally represented on the condition that it may not recover legal costs Legislation Cited: Civil and Administrative Tribunal Act 2013, ss 50,60 Cases Cited: Neighbourhood Association DP No 285853 v Kannapiran [2021] NSWCATAP 92 Texts Cited: None cited Category: Costs Parties: Neighbourhood Association DP No 285853 (Appellant) Arjunan Chinna Kannapiran (First Respondent) Thangam Kannapiran (Second Respondent) Representation: Solicitors: Grace Lawyers (Appellant) Respondents (Self Represented) File Number(s): 2020/00371268 (AP 20/54049) Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 10 November 2020 Before: Graham Ellis SC, Senior Member File Number(s): SCS 20/20812 REASONS FOR DECISION Introduction 1. On 16 April 2021, following a hearing on 29 March 2021, the Appeal Panel published its decision in Neighbourhood Association DP No 285853 v Kannapiran [2021] NSWCATAP 92. The orders made on that day included an order that if the appellant wished to seek costs of the appeal, then written submissions were to be provided to the Appeal Panel in accordance with a timetable set out in that Order. The parties were also directed to indicate whether they consented to the Appeal Panel making an order dispensing with a hearing of the issues concerning the costs of the appeal. 2. Subsequently the Appeal Panel made orders varying that timetable and directing that the parties address, in any submissions that they provide as to the costs of the appeal, the effect of an earlier order made by the Appeal Panel on 17 February 2021 that the appellant have leave to be legally represented on the condition that no legal costs may be recovered by the appellant in the appeal ("17 February 2021 Order"). 3. The Appeal Panel has received written submissions from the appellant dated 28 April 2021, the respondent (undated) and from the appellant in reply dated 10 May 2021. 4. The appellant consented to the Appeal Panel making an order dispensing with a hearing of the issues concerning the costs of the appeal. The respondent was silent on this issue. We are satisfied, for the purposes of s 50 of the Civil and Administrative Tribunal Act 2013 that those issues can be adequately determined in the absence of the parties, by reference to their written submissions and other materials already before the Appeal Panel. Submissions 1. The appellant has submitted that: 1. the Appeal Panel's discretion is to be exercised judicially and with respect to the factors directly connected to these proceedings; 2. there are factors connected with the respondents' conduct of these proceedings which constitute special circumstances under s 60 of the Civil and Administrative Tribunal Act 2013 and which justify an award of costs in favour of the appellant; 3. the 17 February 2021 Order was made at an interlocutory stage and without regard to those special circumstances and such orders ought only be made after consideration of all of the circumstances in a proceeding; and 4. in all of these circumstances, a costs order should be made in favour of the appellant. 1. The respondent's submissions included: 1. reliance upon the 17 February 2021 Order; 2. a submission that the solicitors who appeared for the appellant were not authorised to do so; 3. a submission that the proceedings were not sufficiently complex to require that the appellant be legally represented; 4. submissions as to why there were no special circumstances; and 5. a submission that the respondents ought not be ordered to pay costs in circumstances where the basis of the Appeal Panel's decision was that the Tribunal erred in failing to afford procedural fairness to the appellant. Consideration 1. As noted above, the effect of the 17 February 2021 Order was that the appellant had leave to be legally represented on the condition that it could not recover legal costs of the appeal. 2. Whilst the appellant has submitted that the 17 February 2021 Order should not have been made and has been overtaken by events, it remains in force. The appellant has not applied for an order revoking it. As it remains in force, the appellant is not entitled to recover legal costs of the appeal. 3. Further, the appellant elected to continue with legal representation in circumstances where they knew that the 17 February 2021 Order has been made. 4. Relevantly, the appeal related to the decision of the Tribunal making a fixed sum costs order in the amount of $3,000 instead of an order that the lot owners pay its costs as agreed or assessed. The appeal was allowed on the basis that the Tribunal had erred in making its decision to award costs on a basis not advanced by either party and which neither party was provided an opportunity to address and as a result the Tribunal failed to afford procedural fairness to the parties. While it is conceded that the respondent, a self-represented party, did at times seek to agitate issues that may not have been relevant, however those matters were dealt with quickly and efficiently by the Appeal Panel: see [19] of the decision in Neighbourhood Association DP No 285853 v Kannapiran [2021] NSWCATAP 92. 5. Accordingly, even if the 17 February 2021 Order did not impact on our decision, having considered the matters overall, we would not be satisfied that there are special circumstances which warrant the making of a costs order. In particular we do not find on the submissions made that there are factors connected with the respondents' conduct of these proceedings which constitute special circumstances under s 60 of the Civil and Administrative Tribunal Act 2013 and which justify an award of costs in favour of the appellant. 6. The appellant also raises that there should be an award of costs in favour of the appellant to the extent that such costs are not legal costs. That includes the filing fee. 7. All of the suggested special circumstances raised by the appellant occurred after the filing of the Notice of Appeal. In any event, for the same reasons that are raised above, the appellant's submissions concerning the suggested special circumstances do not provide a basis for an order that the respondents pay the appellants an amount for the filing fee. The appellant has not identified any other non-legal costs. Conclusion and Orders 1. It follows that the appellant's application for costs of the appeal must be dismissed. 2. The Orders of the Appeal Panel are: 1. Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW), dispense with a hearing on the question of costs. 2. The appellant's application for 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: 09 July 2021