Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Boughen v Kumar & Paentia (No 2) [2021] NSWCATAP 262 Hearing dates: On the papers Date of orders: 7 September 2021 Decision date: 07 September 2021 Jurisdiction: Appeal Panel Before: L Wilson, Senior Member M Gracie, Senior Member Decision: (1) Order under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) to dispense with an oral hearing of the appellant's application for costs of the appeal. (2) Allow the appellant's application for his costs of the appeal. (3) Order that the respondents pay the appellant the sum of $1,783.30 (including GST) in full and final payment of his costs of the appeal, within 14 days of the date of publication of these reasons for decision. Catchwords: APPEAL — NCAT— costs - appeal upheld in part -leave to appellant apply to seek costs of appeal - appellant filed submissions seeking costs - no submissions filed by respondent opposing application for costs - special circumstances - apportionment of costs - evidence of costs - costs modest - gross sum costs order Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Beach Petroleum NL v Johnson (1995) 57 FCR 119 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Boughen v Kumar & Paentia [2021] NSWCATAP 116 CPD Holdings Pty Ltd t/as the Bathroom Exchange v Baguley [2015] NSWCATAP 21 eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 Hadid v Lenfest Communications Inc [2000] FCA 628 Hamod v New South Wales [2011] NSWCA 375 Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23 Islam v Metricon Homes Pty Ltd [2018] NSWCATAP 116 Latoudis v Casey [1990] 170 CLR 534 Leary v Leary [1987] 1 All ER 261 Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin & Anor (No 2) [2021] NSWCA 98 O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135 Texts Cited: None cited Category: Costs Parties: Brendan Boughen (Appellant) Devendra Kumar (First Respondent) Suman Paentia (Second Respondent) Representation: Simplicity Law (Appellant) Stockton Grange Real Estate (Respondents) File Number(s): 2020/00371265 (AP 20/53800) Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 11 December 2020 Before: J Lynch, Tribunal Member File Number(s): RT 20/39673 . REASONS FOR DECISION Background 1. The appellant exercised the leave we granted him to seek an order for costs following the publication of our Reasons for Decision in relation to the substantive issues in this appeal: Boughen v Kumar & Paentia [2021] NSWCATAP 116 (principal decision). The issues in dispute are more fully set out in our principal decision. 2. The appeal was from a decision of the Commercial and Civil Division of the Tribunal. The Tribunal had allowed the respondents' claims (as landlords) against the appellant (their tenant) for various costs associated with make-good and repair works consequent upon the appellant's termination of the lease and his vacation of the premises. 3. The appeal was in respect of an alleged failure on the part of the Tribunal to allow for fair wear-and-tear when quantifying the repair costs but principally, it concerned a challenge to the Tribunal's finding in favour of the respondents' claims for costs associated with repairs, testing and decontamination attributed to the presence of methamphetamine residue in the premises (the methamphetamine issue). 4. In respect of the costs allowed for the methamphetamine issue, the Tribunal awarded $475.20 for a new vanity in the en-suite, $290 for methamphetamine testing and $3,950 for decontamination costs. The appellant challenged each of those findings by the Tribunal. 5. The appellant contended that those findings by the Tribunal were against the weight of the evidence and that the Tribunal mistakenly accepted "unreliable" evidence in allowing those claims. 6. We allowed the appellant leave to appeal and we upheld the appeal in part. 7. We allowed that part of the appeal that challenged the Tribunal's findings with respect to any allowance for the cost of the methamphetamine testing and costs associated with decontamination of the premises made in reliance on that testing. 8. We rejected the other ground of appeal in relation to the appellant's contention that the Tribunal failed to allow for fair wear-and-tear in respect of the other amounts awarded in favour of the respondent. 9. Based on the orders of the Tribunal that were challenged on the appeal, the appellant had paid the respondents approximately $2,900. That sum exceeded the $1,641.20 that we had determined the appellant owed the respondents. In our principal decision, we ordered that the respondents repay the appellant any amount received by them in excess of $1,641.20. 10. Accordingly, we upheld the appeal in part. Dispensing with a hearing on costs 1. In accordance with procedural order 6 made in our principal decision, the appellant lodged submissions seeking an order for costs in his favour. The appellant consented to us dispensing with a hearing on the question of costs pursuant to s 50(2) of the NCAT Act. 2. The procedural orders in our principal decision made provision for the respondent to provide submissions in response to any application for costs that might be made by the appellant. No submissions were received by the respondents' agent or by the respondents. 3. We are satisfied by the email addresses identified on the appellant's submissions when it was emailed to the Registry, that the appellant also served his submissions on the respondent's agent, Stockton Grange Real Estate (the agent). Ms Searle as the agent had been granted leave by the Tribunal to represent the respondents both before the Tribunal and on the appeal. 4. Having regard to the guiding principle in s 36 of the NCAT Act, which is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings", and given that the amount of costs claimed by the appellant are relatively small together with the failure by the respondents to oppose the appellant's application, we are satisfied that it is appropriate to dispense with an oral hearing on the application for costs and we so order under s 50(2) of the NCAT Act. Appellant's Submission on Costs 1. The appellant submitted: 1. His application for costs arose from the respondents "attempting to charge me for cleaning methamphetamine residue from the home I leased" between January 2016 and September 2020; 2. He stated that he is "not and have never been a drug user so this was a very stressful case for me. I have worked as a crane operator for approximately 20 years and have been subject to random drug tests by my employer in all that time"; 3. He believed "the original decision based on the testing reports was unjust, wrong, and it caused me and my daughter further emotional hardship. It was important to me that the people who did the testing were not properly qualified. I did not feel able to speak for myself about the evidence and exactly what issues were involved. Following my experience in the first hearing, I felt out of my depth, and also that I would not be listened to on appeal. I engaged a lawyer to advise me about expert evidence, and to appear on my behalf to make what I now realise are quite complex arguments"; 4. The respondents and their agent "had no basis to believe I was making or using drugs in the property. They did not ask me. They engaged a building inspection firm who claimed to have expertise in identifying, and decontaminating drug houses. The firm had no qualifications to make the claim that what was then my home had drug residue in it. When I moved in, there was nothing in the agreement to say the house had been previously been tested and was free of methamphetamine residue. Even if there was residue, because of the lack of prior testing, there is absolutely no evidence that I was responsible for it"; 5. the agent "relied on unqualified testers and dubious handling of evidence, I was put through the stress of being thought of as a drug addict, charged for decontaminating the house of methamphetamine residue, appearing in NCAT for myself, and going to the expense of hiring a lawyer for the appeal"; 6. "I advised my lawyer that I could not afford much, and she worked with me on an agreed flat rate to keep the costs down as much as possible. I am a widower, and full-time parent of a teenage daughter, as well as holding down full time job as a crane operator. The cost of representation, although modest, is still extraordinary for me and created further financial difficulty during what has been an unnecessarily stressful time". Statutory provisions and principles in relation to costs 1. Rule 38A of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules) provides that an Appeal Panel must apply the same cost provisions that applied in the decision at first instance when deciding whether to award costs. There are different costs orders that apply to proceedings in the Consumer and Commercial Division where the amount claimed or in issue is more than $30,000. In this case, where the amount is less than $30,000, then s 60 of the NCAT applies. 2. Section 60 of the Civil and Administrative Tribunal Act 2013 (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. (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. Section 60(1) provides a presumption that each party will pay its own costs. Ordinarily therefore, a successful party would only be entitled to a favourable costs order if we were satisfied that there were "special circumstances" which would warrant us setting aside that presumption and justify the making of such an order: s 60(2). 2. Broad guidance for determining whether "special circumstances" exist is provided in the provisions of s 60(3) set out above, although by reason of subsection (3)(g), the matters set out are not circumscribed. In the exercise of our discretion we may take into account "any other matter that the Tribunal considers relevant". The requirement that must govern the exercise of our discretion is that the circumstances, which apply to the proceedings and for which a costs order is sought, are "special." 3. In eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94, the Appeal Panel at [94] cited with approval an Appeal Panel decision in CPD Holdings Pty Ltd t/as the Bathroom Exchange v Baguley [2015] NSWCATAP 21 which reviewed the authorities dealing with the meaning of "special circumstances" at [23]-[31] and stated: From those authorities, it can be seen that "special circumstances" are circumstances that are out of the ordinary, they do not have to be extraordinary or exceptional. Further, the discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. Each situation must, of course, be assessed on a case by case basis to see whether or not special circumstances exist so as to warrant the award of costs. 1. In Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135, the Appeal Panel also described "special circumstances" at [37]: Special circumstances" are circumstances that are out of the ordinary. They do not have to be extraordinary or exceptional: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11], citing Santow JA in Cripps v G & M Mawson [2006] NSWCA 84 at [60]. 1. When having reward to the above matters, the fundamental principle remains that a costs order is primarily to compensate and not to punish an unsuccessful party: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 (Oshlack) per McHugh J at [67] Consideration "Special Circumstances" to warrant an order for costs 1. Having regard to the appellant's submissions and the authorities set out above, we discern three main grounds advanced by the appellant in support of an award of costs and constituting "special circumstances": 1. the seriousness of the allegation made against him; 2. the unreliability of the evidence relied upon by the respondents and their agent; 3. the appellant's inability to deal with the complexity of the issues on an appeal requiring him to engage a lawyer to appear on his behalf at the hearing. 1. For the reasons that follow, we agree that these matters (among others) constitute "special circumstances" warranting an award of costs in favour of the appellant. 2. The allegation in relation to the premises being used for either the use or manufacture of methamphetamine was serious. Although the allegation was not made directly against the appellant personally, the inference and stigma associated with the claim made by the respondent was obvious. We accept the appellant's contention that this was a cause of considerable stress for him and his daughter for the reasons he provided in his submission. 3. In relation to the contention that the respondent's evidence was unreliable, we have treated that as a submission in effect that by reference to the matters in s 60(3), the respondent's claim was said to have had "no tenable basis in fact" or was "otherwise misconceived or lacking in substance". 4. At [45] of our principal reasons we stated: For the reasons we discuss below, there was an absence of any probative evidence to establish that the discolouration was in fact or was likely to have been caused by methamphetamine use. There was no quality controlled and accredited testing for the tests that returned positive results for the presence of methamphetamine in the ensuite. We therefore cannot be satisfied that the Tribunal was correct in finding the appellant liable for all of the costs it allowed for the methamphetamine testing and the decontamination of the premises. 1. In our opinion, the evidence relied on by the respondents was not just unreliable, it was inherently flawed and incapable of proving the use or presence of methamphetamine in the premises. The methamphetamine testing was constructed by an unqualified and unaccredited pest control company. The quote for remediation, which was by far the main cost claimed by the respondents, was provided by an accredited testing and remediation company (MTK) but MTK relied solely on the test results of the non-accredited pest company and recommended remediation in areas of the premises where the test results had recorded no presence of methamphetamine residue. 2. Further, as we stated in our principal decision at [70]: There is no evidence that the MTK quote was accepted. If decontamination was undertaken, there has been no completion report or validation report provided. There is no evidence of payment of the 50% deposit to which the MTK invoice of 18 September 2020 refers, no evidence of when that work might have occurred and no record of payment of the "balance on completion" of the remediation. 1. We also accept that the issues on appeal were complex. The issues were numerous and they required considerable forensic analysis by us which is set out in some detail and length in our principal decision. 2. As the appellant submitted, he represented himself before the Tribunal but the outcome left him "shaken" in his confidence and ability to deal with the issues on appeal although he remained convinced that he "needed to have the decision reviewed" because the decision based on the testing reports was "unjust, wrong...". 3. On 27 January 2021, the appellant had sought and was granted leave to be legally represented. The respondents were granted leave to be represented by their agent Ms Searle on the condition that no legal costs may be recovered by the respondents in the appeal. There was no prohibition made by the Tribunal on the appellant's entitlement to claim his legal costs if he was successful. 4. We are satisfied that the claims for costs in respect of the methamphetamine issue were lacking in substance and the reports relied upon by the respondents were devoid of any probative value to establish the matters in support of the respondents' claims. 5. The use of an unaccredited pest control company to undertake methamphetamine testing was inexplicable. Compounding that problem was the respondents' decision to obtain a quote from MTK as an accredited test and remediation specialist but not have MTK undertake its own testing. That was of particular concern where as we explained in our principal reasons, the MTK report provided a scope of works for the remediation that did not align with the locations where the test results obtained from the pest control company purportedly showed the presence of methamphetamine residue. 6. Further, there was no tenable factual basis on which the respondent could prove an entitlement for $3,950 for decontamination costs. This was by far the largest cost claimed by the respondents in respect of the methamphetamine issue. The MTK report provided a scope of work for remediation but it was a quote for that work to be done at a cost of $3,950. As we stated in our principal decision, there was no evidence of: 1. any verbal or written acceptance of the MTK quote; 2. a payment of the 50% deposit required upon acceptance of the quote; 3. any of the remediation work being undertaken by MTK; or 4. a payment of any sum referrable to the remediation works being completed. 1. We are satisfied that the appellant has established special circumstances entitling him to an order for his costs of the appeal. Should the order for costs be apportioned? 1. We are mindful that the appeal was successful in part only. The appellant did not succeed on his contention on the appeal that the Tribunal did not allow for fair wear-and-tear in its quantification of those items allowed as make good or repairs to the premises after the appellant vacated. This issue occupied a discrete and very small part of the hearing and the issues for our consideration. 2. Overwhelmingly, the main issue in the appeal terms of time, quantum and complexity was the appellant's challenge on which he was entirely successful in relation to the respondent's claim for costs associated with the alleged use or manufacture of methamphetamine in the premises during the period of the appellant's occupancy. 3. Where this appeal was therefore upheld in part only, in general terms when a court or tribunal is considering an award of costs, it will look at the overall outcome of a case to assess whether a party is successful in the proceedings. It is the party who is successful in overall terms having regard to the outcome of the appeal who is entitled to an order for costs in its favour. This principle is subject to exceptions generally only involving misconduct by that party: Latoudis v Casey [1990] 170 CLR 534; Oshlak v Richmond River Council [1998] HCA 11. No such exceptions arise in this case. 4. In Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin & Anor (No 2) [2021] NSWCA 98 (Oikos), the NSW Court of Appeal at [14] referred to and approved its earlier decision in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 (Bostik) where the Court identified the various principles to be applied where there may have been mixed outcomes of varying degrees in a case. Relevantly, in Oikos the Court set out the following from Bostik: The principles governing the making of an order as to costs so as to reflect the time taken in dealing with a particular issue in which the successful party in the proceedings or on the appeal did not succeed were reviewed by this Court in Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373. Those principles may be summarised as follows: Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported). 1. In this appeal, there were only two separate types of issues and the appellant succeeded on the issue that clearly dominated the hearing, namely his challenge to the Tribunal's findings upholding the respondents' claims for costs in relation to the methamphetamine issue. 2. Having regard to the above, we are satisfied that the there should be no exercise to apportion costs and the appellant is entitled to an order in his favour for the costs of the whole of the appeal proceedings. Gross Sum Costs Order 1. As we have set out above, s 60(4) of the NCAT Act provides that if costs are to be awarded, the Tribunal (which includes the Appeal Panel) may determine to what extent costs are to be paid by a party and it may order costs to be assessed on the basis set out in the legal costs legislation or on any other basis. 2. In Islam v Metricon Homes Pty Ltd [2018] NSWCATAP 116 (Metricon Homes) at [40], the Appeal held: ... we agree that in the exercise of its broad discretion in relation to costs and in accordance with s 60(4), the Tribunal has the power to make a gross sum costs order. 1. The Appeal Panel in Metricon Homes also reiterated the need for such a "broad discretion" to be exercised judicially: at [40]. 2. At [47]-[48] of Metricon, the Appeal Panel further stated: 47. The circumstances in which a gross sum costs order can be made have been extensively considered judicially. In Hamod v State of New South Wales (No 13) [2009] NSWSC 756 (5 August 2009), Harrison J cited Einstein J's summary of the relevant principles in Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23, at [9]: [9] For present purposes it seems convenient to commence with a recitation of the principles which inform the exercise of the discretion: i. the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation: Beach Petroleum NL v Johnson (1995) 57 FCR 119, Von Doussa J page 265: [following Purchase J in Leary v Leary [1987] 1 All ER 261 who described the purpose of the rule allowing the fixing of a gross sum as 'the avoidance of expense, delay and aggravation involved in protracted litigation arising out of taxation' (All ER page 265)]; ii. the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable: Beach Petroleum at [16]; iii. the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available: Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738, per Giles JA at para [22]; [following (Wentworth v Wentworth (CA, 21 February 1996, unreported, per Clarke JA) and adopted in Sony Entertainment v Smith (2005) 215 ALR 788; [2005] FCA 228; BC200500963 at para [199]; iv. a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place: Harrison v Schipp at para [22]; v. the gross sum 'can only be fixed broadly having regard to the information before the Court': Beach Petroleum at 124; [In Hadid v Lenfest Communications Inc [2000] FCA 628 at [35] it was said that the evidence enabled fixing a gross sum 'only if I apply a much broader brush than would be applied on taxation, but that ... is what the rule contemplates'.] vi. nevertheless the power to award a gross sum must be exercised judicially, and after giving the parties an adequate opportunity to make submissions on the matter: Leary v Leary [1987] 1 WLR 72 at 76, and Beach Petroleum NL v Johnson (No.2) (1995) 57 FCR 119 at 120'; vii. In terms of the necessity for the approach taken to be logical, fair and reasonable, Von Doussa J in Beach Petroleum NL & Anor v Johnson & Ors (No 2) (1995) 57 FCR 119, put the matter as follows, at paras [16]: 'On the one hand the Court must be astute to prevent prejudice to the respondents by overestimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary 'fail safe' discount on the cost estimates submitted to the Court: Leary v Leary at 265.' ... 48. These principles were referred to by the NSW Court of Appeal in Bechara trading as Bechara and Company v Bates [2016] NSWCA 294, which stated, at [12] to [14]: 12. The power to award a lump-sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at 742-723 [21]-[22]; Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 123. 13. The power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Hamod v New South Wales [2011] NSWCA 375 at [818] per Beazley JA (Giles and Whealy JJA agreeing). 14. A "broad brush" approach is appropriate. To require the same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; [1999] FCA 673 at 5 [16]; Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [7]. 15. The courts have typically applied a discount in assessing costs on a gross sum basis: Hamod v New South Wales at [814]. 1. In approaching the question of whether to award a gross sum costs order, we have had regard to the above principles and considered the following matters: 1. Firstly, s 36 of the NCAT Act. In our opinion, the making of a gross sum costs order would be in keeping with the "guiding principle" in s 36 of the NCAT Act to facilitate "the quick, just or cheap resolution of these proceedings". The making of a fixed sum costs order would obviate the need for the appellant to engage in yet a further process (possibly contested) for the recovery of a modest sum for his costs. Such an order will avoid further expense, delay and aggravation if the respondents require his costs to be assessed: Leary v Leary [1987] 1 All ER 261 (Leary v Leary) at 265; followed by Von Doussa J in Beach Petroleum NL v Johnson (1995) 57 FCR 119 (Beach Petroleum). 2. Secondly, we have not been given the benefit of knowing whether the respondents might agree to the payment of a quantified sum for the appellant's costs. As we have stated above, the respondents did not avail themselves of our procedural orders allowing them to provide submissions on the question of costs. We do not regard that omission as any indication of consent on the part of the respondents for us to make an order for costs in favour of the appellant, whether in a fixed amount or to be assessed. However, we are satisfied that the respondents were fully apprised of the appellant's application for costs and the likely quantum of those costs to be claimed by him. The respondents' decision not to provide submissions indicating their consent or objection to the appellant's submission should be seen in the context where the appellant attached a copy of a tax invoice from his solicitor of $1,345.30 and evidence of the cost of the filing fee for the appeal of $438. It is clear the appellant was seeking the costs of the total of those two amounts, being $1,783.30. We regard the component for the costs of filing fees as uncontentious. The respondents had the opportunity but did not lodge any submission contending that the legal costs claimed by the appellant were in any way unreasonable. Having regard to the need to exercise the power to award a gross sum costs order judicially, we consider that the respondents had an adequate opportunity to make submissions on this matter and declined to do so: Beach Petroleum at 120. 3. Thirdly, the appellant submitted that his claim was for "modest costs". The attached tax invoice from his solicitor is dated 6 April 2021 and invoiced the sum of $1,345.30. We have allowed that tax invoice into evidence on the appellant's application for costs. The tax invoice is signed by the solicitor and itemised the work performed by the solicitor at an hourly rate of $400 (excluding GST). The work involved a consultation, taking instructions and reviewing the Tribunal's decision and the appeal documents for which only 1 hour was charged. The appeal occupied half a day of hearing on 4 March 2021 (via telephone). The solicitor charged only 2 hours in preparing for and attending on the hearing of the appeal. A sum of $1,200 was charged for all professional fees. The balance of the invoice was for some minor photocopying disbursements ($23) and GST. We agree that those costs were "modest" for a legal practitioner conducting a contested appeal hearing. Gross sum orders are increasingly made where the subject matter of the litigation is a modest sum in comparison to the costs involved in an assessment and the amounts in dispute: O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36 at [5]. 4. Fourthly, the solicitor's tax invoice permits us to assess the different components of the costs, including the rates and hours billed by the solicitor. We are satisfied on the evidence before us that the making of a gross sum costs order would accord with the requirement referred to above in Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 (Harrison v Schipp) at 742-723; [22], namely that the power to make a gross sum costs order "should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available". We are not required to undertake a detailed examination similar to that performed for a taxation or a formal costs assessment: Hamod v New South Wales [2011] NSWCA 375 (Hamod) at [819]; 5. Fifthly, in taking a "broad-brush" approach contemplated by the authorities such as Beach Petroleum at 124 and Hadid v Lenfest Communications Inc [2000] FCA 628 (Hadid) at [35], a discount is usually applied when calculating a gross sum costs order. That discount is often said to be typically in the order of 30–35% in the case of a party/party costs order. That is said to reflect the fact that on an assessment, even on the indemnity basis, a successful party invariably recovers something less than its actual costs. The discount is to allow for the possibility that in a "broad-brush" approach, the final sum may include costs that would not be recovered on assessment. The discount also represents an allowance for a saving in cost and time by avoiding a detailed assessment and a trade-off in denying the other party the opportunity to object to a detailed bill. The practice of applying a discount on lump sum assessments is common: eg Hamod at [813]; Beach Petroleum at 164–165; Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23 (Idoport v Argus) at [13]. 6. Sixthly however, a court or tribunal is not required to apply a percentage discount to the sum sought by the successful party. As we set out above from the Appeal Panel decision in Metricon Homes and the extract from Idoport v Argus at [9] (vi) (citing Leary v Leary at 265), a court or tribunal must be "astute not to cause an injustice to the successful party by an arbitrary 'fail safe' discount on the cost estimates submitted to the Court". 7. Seventhly, we are satisfied that the invoiced amount of $1,200 is not excessive having regard to the issues involved in the proceedings on the appeal. We are of the opinion that there is little to no risk that the sum of fees includes any amount of costs that might be disallowed on an assessment. We can discern nothing unreasonable in the quantum of costs invoiced by the appellant's solicitor: to the contrary, they are not only modest, they demonstrate a willingness on the part of the solicitor to cap costs to afford the appellant the opportunity of securing legal representation. The appellant in his submission on costs stated that he informed his solicitor "that I could not afford much, and she worked with me on an agreed flat rate to keep the costs down as much as possible". On any usual fee paying basis to conduct a hearing on an appeal such as this, many more hours of legal work would ordinarily have been charged and the professional costs would be many times the amount the appellant is now claiming. Based on the appellant's written submissions provided in support of his application, such costs would have been beyond his capacity to pay. 8. Eighthly, we are satisfied that our approach in making a gross costs order meets the "touchstone" that the estimate of costs is logical, fair and reasonable: Beach Petroleum at [16]. Such an order is fair to both parties given that the sum is modest, it ends the matter with certainty and without further delay and the respondents had notice of the quantum being claimed by the appellant and they did not see fit to challenge that sum. Further, it properly and fairly compensates the appellant: Oshlack at [67]. 9. Ninthly, in applying the "broad brush" approach contemplated by authorities such as Beach Petroleum at 124 and Hadid at [35], we are satisfied that there is a sound evidentiary basis in the form of the solicitor's itemised tax invoice from which we can assess the reasonableness of the appellant's costs of the appeal and that an appropriate sum can be determined from the available materials: Harrison v Schipp [21]-[22]; Beach Petroleum at 123. 1. Having regard to the considerations and authorities we have referred to above, we are of the view that it is fair to both parties on the material before us that we make a gross sum costs order for the full amount of the capped fees charged by the appellant's solicitor in representing him on the appeal and the cost of filing fees, totalling a sum of $1,783.30 (including GST). Disposition of the application for costs of the appeal 1. We have therefore allowed the appellant's application for costs. We make a gross sum costs order in favour of the appellant in the sum of $1,783.30 (including GST) to be payable by the respondents within 14 days of the publication of these reasons. Orders 1. We make the following orders: 1. Order under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) to dispense with an oral hearing of the appellant's application for costs of the appeal. 2. Allow the appellant's application for his costs of the appeal. 3. Order that the respondents pay the appellant the sum of $1,783.30 (including GST) in full and final payment of his costs of the appeal, within 14 days of the date of publication of these reasons for decision. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 September 2021