Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gay v The Minister Administering the Environmental Planning and Assessment Act (No 2) [2022] NSWCATAP 42 Hearing dates: On the papers Date of orders: 16 February 2022 Decision date: 16 February 2022 Jurisdiction: Appeal Panel Before: T Simon, Principal Member J Currie, Senior Member Decision: (1) An oral hearing on the issue of costs is dispensed with under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). (2) The application for costs and other orders is dismissed. (3) Each party is to bear its own costs of the appeal in accordance with s 60 (1) of the Civil and Administrative Tribunal Act 2013 (NSW). Catchwords: COSTS---Rule 38A Civil and Administrative Tribunal Rules 2014---Amount claimed or in dispute in appeal proceedings---Whether special circumstances must be established Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Residential Tenancies Act 2010 (NSW ) Cases Cited: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 Gay v The Minister Administering the Environmental Planning and Assessment Act [2021] NSWCATAP 359 Mergerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Category: Costs Parties: John Gay (Appellant) The Minister Administering the Environmental Planning & Assessment Act (Respondent) Representation: A Johnstone – Solicitor for the appellant N Simpson – Counsel for the respondent File Number(s): 2021/88556 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 12 November 2020 Before: S Hennings, General Member File Number(s): RT 20/40916 REASONS FOR DECISION 1. This is an application for costs and other orders made by the appellant in relation to a decision of the Appeal Panel in Gay v The Minister Administering the Environmental Planning and Assessment Act [2021] NSWCATAP 359 2. The appeal had been lodged by the tenant in relation to a decision of the Tribunal, made on 12 November 2020, terminating a tenancy agreement between the parties. The termination order had been made pursuant to s 94 of the Residential Tenancies Act 2010 NSW (RTA). 3. On 15 November 2021, we allowed the appeal, set aside the orders of the Tribunal and remitted the matter to the Consumer and Commercial Division of the Tribunal to be heard and re-determined by a differently constituted Tribunal according to law. 4. Subsequent to the publication of reasons in the appeal, the appellant sought an order for costs and the Appeal Panel directed the parties to provide submissions. The directions provided a timetable for the filing and serving of submissions, and for submissions to deal with whether or not the party consented to the issue of costs being determined on the papers. 5. The Appeal Panel received the following submissions from the parties: 1. Appellant's submissions dated 7 January 2022. 2. Respondent submissions dated 14 January 2022. 3. Appellant's submissions in reply dated 21 January 2022. 1. We have read and considered those submissions. Neither party sought an oral hearing on the issue of costs. We are satisfied that the issue of costs can be adequately determined in the absence of an oral hearing and that the parties would be put to further unnecessary costs if they were to attend a hearing. Costs of the Appeal 1. Section 60 (1) of the Civil and Administrative Tribunal Act 2013 (NCAT Act), sets out that parties bear their own costs. Pursuant to s 60 (2) of the NCAT Act, a cost order can be made if "special circumstances" are established. Section 60 (3) of the NCAT sets out the matters to which the Tribunal may have regard to in respect of whether "special circumstances" exist. 2. The appellant submits that by reason of r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules) the Appeal Panel may award costs even in the absence of special circumstances.. 3. Rule 38 of the NCAT Rules states: 38 Costs in Consumer and Commercial Division of the Tribunal (1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if— (a) the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under clause 10(2) of Schedule 4 to the Act in relation to the proceedings, or (b) the amount claimed or in dispute in the proceedings is more than $30,000. 1. Rule 38A of the NCAT Rules states: 38A Costs in internal appeals (1) This rule applies to an internal appeal lodged on or after 1 January 2016 if the provisions that applied to the determination of costs in the proceedings of the Tribunal at first instance (the first instance costs provisions) differed from those set out in section 60 of the Act because of the operation of— (a) enabling legislation, or (b) the Division Schedule for the Division of the Tribunal concerned, or (c) the procedural rules. (2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal. 1. The appellant submits that r 38 applies to this appeal because the tenant's rent is approximately $385 per week, which equates to $20,020 per year and on that basis if the tenancy continues for more than a year, the value of the dispute exceeds the amount referred to in r 38 of the NCAT Rules. 2. In respect of r 38A of the NCAT Rules, in Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 the Appeal Panel found at [57]: 57 Adapting these principles to the circumstances of the present appeals and having regard to the specific wording of r 38, it appears to us that in applying r 38(2)(b): (1) The determinative factor is the amount in dispute in each appeal, not the amount in dispute in the proceedings at first instance; (2) The phrase "in dispute" is to be construed as meaning truly in dispute or at issue or, inversely, not unrealistically in dispute; (3) Whether "the amount … in dispute" in each appeal is more than $30,000 depends on whether there is a realistic prospect that in each appeal the wealth of the appealing party would be changed by more than $30,000 or, put another way, whether the right claimed by the appealing party, but denied by the decision at first instance, prejudices that party to an amount in excess of $30,000 … 1. The Appeal Panel must consider whether the amount claimed or in dispute exceeds $30,000 in the Appeal Panel proceedings in respect of whether there is a realistic prospect that the wealth of the tenant would be changed by more than $30,000 dependent upon the outcome of the appeal. 2. The fact that the rent may exceed $30,000 over a number of years does not invoke r 38A of the NCAT Rules. For the provisions of s 60 (1) (2) and (3) of the NCAT Act not to apply, we must be satisfied that there is a realistic prospect the wealth of the tenant would be changed by more than $30,000 by reason of the outcome of the appeal. We do not find that would be the case. We are not satisfied that Rule 38 and 38A of the NCAT Rules apply to the costs application. Success in appeal by tenant and the remittal of the matter related to whether the tenancy should be terminated. The amount claimed or in dispute in the appeal does not exceed $30,000. 3. We are satisfied the provisions of s 60 of the NCAT Act apply to these appeal proceedings. Special Circumstances 1. The tenant has addressed the special circumstances which would warrant the making of a costs order. 2. "Special circumstances" are circumstances that are out of the ordinary, but not necessarily exceptional or extraordinary. The discretion to award costs must be exercised judicially having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: Mergerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]. . Having considered the matters set out in s 60 (3) of the NCAT in respect of whether "special circumstances" exist, we are not satisfied to exercise the discretion to award costs for the following reasons. 3. The appellant submits that the reasons for decision given by the Appeal Panel demonstrate that the appellant had a strong case The appellant refers to para [27] of the Reasons where the Appeal Panel stated: "We have also considered the merits of the appeal. Weighing up the relevant matters, we are satisfied that the merit of the appeal weighs in favour of granting the extension of time to lodge the appeal because we are satisfied that the tenant was denied procedural fairness which resulted in error on the Tribunal's part." 1. He also refers to para [71] of the reasons for the decision where the Appeal Panel found that "grounds 4, 6, 7 and 8 have merit." 2. While the appellant was ultimately successful in the appeal, they were not successful on all the grounds that they had raised and a ground was abandoned. The appellant was unsuccessful on grounds 1, 2, and 5 and abandoned ground 3 on the first day of the hearing. The comments referred to in para [27] of the reasons for decision relate to the exercise of the discretion to grant an extension of time, not on the ground that the appellant had a strong case, rather that together with other factors the appeal had merit which warranted an extension of time. 3. The appellant submits that the appeal was complex and the outcome had serious consequences for the appellant because it was about terminating a tenancy of about 33 years. While we accept the implication of any termination is serious, we are not of the view that this appeal was particularly complex. In essence the main issues for determination were whether the appellant had been denied procedural fairness and the considerations which are relevant when terminating a tenancy pursuant to s 94 of the RTA. 4. The appellant submits that the relative financial resources of him and his wife is a relevant special circumstance which would warrant the making of a costs order. The appellant submits that together with his wife, they are elderly pensioners with limited financial resources and multiple health issues and that it would be fair and reasonable for the respondent, a State Government Department, to be ordered to pay the appellant's costs of the appeal and it can be assumed that the financial resources of the respondent far exceed the financial resources of the appellant and his wife. He also submits that the potential outcome of the appeal for the appellant and his family, if the appeal had been dismissed, was extremely serious. The appellant and his family would have had to vacate the premises in circumstances where they had not been able to find suitable alternative accommodation (the appellant relies on statements of evidence of Sue Gay dated 5 May 2021 and 28 June 2021). 5. We are not of the view that the financial circumstances in this case establish special circumstances. There is very little supporting evidence (beyond the statements) in relation to the complete financial circumstances of the tenant or a full disclosure of the steps taken to secure alternative accommodation and what alternative accommodation was sought.. 6. The appellant also submits that the fact that the matter has been remitted for a further hearing will result in further costs being incurred. Our determination in relation to costs relates to the appeal and not what may happen in the future. We are not of the view that this amounts to a special circumstances. 7. Having considered the submissions of the parties, we find that there are no special circumstances which would warrant the making of costs orders in this matter. The orders are made accordingly. ORDERS 1. The Tribunal makes the following orders: 1. An oral hearing on the issue of costs is dispensed with under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The application for costs and other orders is dismissed. 3. Each party is to bear its own costs of the appeal in accordance with s 60 (1) of the Civil and Administrative Tribunal Act 2013 (NSW). ********** 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: 16 February 2022