Civil and Administrative Tribunal New South Wales Medium Neutral Citation: van Brugge v Foresto [2022] NSWCATAP 109 Hearing dates: 21 March 2022 Date of orders: 12 April 2022 Decision date: 12 April 2022 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member A Boxall, Senior Member Decision: (1) The appeal is allowed in part. (2) Order 1 made by the Tribunal on 7 December 2021 is varied so as to omit "which is $1898.60" and to substitute "and minus $1,000.00 (being the agreed value of the tenant's goods) which is $898.60". (3) The first subparagraph of order 2 made by the Tribunal on 7 December 2021 is set aside. (4) The appeal is otherwise dismissed. (5) Leave to appeal is refused. (6) The respondents' application that the appellant should pay two-thirds of their costs of the appeal is dismissed. Catchwords: BAILMENT — Remedies — Under statute — Uncollected Goods Act 1995 (NSW) CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Res judicata, Anschun estoppel and abuse of process COSTS – Whether there are special circumstances warranting an award of costs DAMAGES – General principles – Breach of tenant's covenants – Where landlords have not yet incurred expense in remedying tenant's defaults – Where tenant asserted no actual loss suffered by landlords – Whether damages properly awarded on 'costs of cure' basis rather than nominal damages LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) – Covenants by tenant – As to condition of premises, cleanliness and removal of rubbish on giving vacant possession – Breach of tenant's covenant to leave premises in good condition, clean and remove rubbish Landlords have not yet incurred expense in remedying tenant's defaults – Whether cost of remedying tenant's default is the appropriate measure of damages Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 4, 35, 60, 80, Sch 4, cl 12 Civil and Administrative Tribunal Rules 2014 (NSW), rr 25, 38, 38A Residential Tenancies Act 2010 (NSW), ss 51, 84, 85, 87, 115 Residential Tenancies (COVID-19 Pandemic Emergency Response) Amendment Regulation 2021 (NSW) Residential Tenancies Regulation 2019 (NSW) Uncollected Goods Act 1995 (NSW), ss 3, 20, 24, 31B Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Bauer v Farm Cove Investments Pty Ltd [2022] NSWCATAP 14 Brodyn Pty Ltd v Owners Corporation Strata Plan 73019 (No 2) [2016] NSWCATAP 224 Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152 Camilleri v Eastlake [2018] NSWCATAP 176 Cominos v Di Rico [2016] NSWCATAP 5 CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 Ellis's Town House Pty Ltd v Botan Pty Ltd [2017] NSWCA 20 eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 Mae v Ho and Ors [2021] NSWCATAP 5 Matson v Attorney-General (No 2) [2022] FCA 213 McLean v Power [2013] NSWSC 193 Mercieca v Fu [2017] NSWCATAP 205 Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; (2003) 196 ALR 257 Powercor Australia Ltd v Thomas (2012) 43 VR 220; [2012] VSCA 87 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Quader v Bell [2017] NSWCATAP 24 Ravenscroft v Skinner [2016] NSWCATAP 107 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Smits v Loel [2014] FCA 1341 Smits v Loel (No 3) [2015] FCA 77 The Owners – Strata Plan 5319 v Price [2020] NSWCATAP 245 Texts Cited: None cited Category: Principal judgment Parties: Chris van Brugge (Appellant) Anthony Foresto (First Respondent) Steve Foresto (Second Respondent) Representation: Appellant (self-represented) Solicitors: Legal Helpdesk Lawyers (Respondents) File Number(s): 2021/00362710 Publication restriction: NIl Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2021] NSWCATCD Date of Decision: 7 December 2021 Before: E Sarofim, General Member File Number(s): RT 21/42985; RT 21/43989 REASONS FOR DECISION Overview 1. This is an internal appeal from the decision of the Consumer and Commercial Division of the Tribunal made on 7 December 2021 in two proceedings between Anthony Foresto and Steve Foresto, who were the former landlords, and Chris van Brugge, who was the former tenant, of premises at Cremorne (the premises). In the proceedings commenced by the landlords, the Tribunal ordered the tenant to pay the landlords $1,898.60. The Tribunal dismissed the proceedings commenced by the tenant. 2. We have decided to allow the appeal in part, to vary order 1 so that the tenant is to pay $898.60 to the landlords and to set aside the first subparagraph of order 2 of the orders made by the Tribunal on 7 December 2021, to otherwise dismiss the appeal, and to refuse leave to appeal. We have also dismissed the landlords' application that the tenant should pay two-thirds of their costs of the appeal. The factual background 1. On 29 January 2015, the parties entered into a residential tenancy agreement of the premises for a term of six months commencing on 1 February 2015 under which the tenant paid a rental bond of $2,4000.00 (the tenancy agreement). 2. Following the expiry of the tenancy agreement, the tenant held over on the terms of the tenancy agreement. 3. At all relevant times John Millane (Mr Millane), who is a director/sales manager of Cousins & Co Real Estate, managed the tenancy agreement on behalf of the landlords. 4. On 8 July 2021, the landlords issued a termination notice under s 85 of the Residential Tenancies Act 2010 (NSW) (RT Act) requiring the tenant to give up vacant possession of the premises on 12 October 2021 (the 8 July 2021 termination notice). 5. On 9 August 2021, the landlords issued a termination notice under s 87 of the RT Act for the non-payment of rent requiring the tenant to give up vacant possession of the premises on 24 August 2021 (the 9 August 2021 termination notice). The proceedings between the parties in the Tribunal 1. There have been the following four proceedings between the parties in the Tribunal: 1. proceedings RT 21/34035 (the RT 21/34035 proceedings); 2. proceedings RT 21/38070 (the RT 21/38070 proceedings); 3. proceedings RT 21/42985 (the RT 21/42985 proceedings); 4. proceedings RT 21/43989 (the RT 21/43989 proceedings). The RT 21/34035 proceedings 1. On 9 August 2021, the landlords as the applicants commenced the RT 21/34035 proceedings against the tenant as the respondent by filing an application in which they sought a termination order, a possession order, and a money order. 2. On 30 August 2021, the Tribunal relevantly made against the tenant in his absence a termination order for non-payment of rent, a possession order which was suspended until 2 September 2021, a money order for the immediate payment of $5,053.81, and an order for the payment of the rental bond to the landlords (the 30 August 2021 orders). 3. On 3 September 2021, the Tribunal issued a warrant for possession of the premises. 4. On 3 September 2021, the Deputy Registrar of the Tribunal sent a letter to each the landlords and the tenant at their respective email addresses held in the Tribunal's records advising that a warrant for possession had been sent to the Office of the Sheriff of NSW, and relevantly stating: "What does the person entitled to possession need to do? To organise for the enforcement of the warrant the person entitled to possession should, within 7 days: Go to the Office of the Sheriff website https://www.courts.nsw.gov.au/courts-and-tribunals/office-of-the-sheriff-of-nsw/enforcements.html and complete the eviction booking request form Enf-EBR001 Email the request form to operations.enforcement@justice.nsw.gov.au Pay the fee to the Office of the Sheriff by contacting 8688 4080" The RT 21/38070 proceedings 1. On 7 September 2021, the tenant as the applicant commenced proceedings RT 21/38070 against the landlords as the respondents by filing an application in which he sought an order setting aside the 30 August 2021 orders. 2. On 8 September 2021, the Tribunal ordered that the operation of the orders for payment of money and for termination and possession made on 30 August 2021 in the RT 21/34035 proceedings were stayed until further order of the Tribunal. 3. On 20 September 2021, the Tribunal dismissed the proceedings and lifted the stay order made by the Tribunal on 8 September 2021, and relevantly provided the following reasons for the decision: "2. The Tribunal accepts that the tenant was absent when the orders were made. However, the Tribunal is not satisfied that his absence has made any difference to the outcome: a. As to the money orders, the tenant has provided no basis for disputing the amounts. b. As to the orders for termination and possession, the landlords by their agent have informed the Tribunal that the tenant has vacated the premises. c. The tenant also complains that the landlords by their agent breached duties owed to him. However, these complaints are not complaints in response to the landlords' application, they are properly the subject of an application by the tenant." The RT 21/42985 proceedings and the RT 21/43989 proceedings 1. On 15 October 2021, the tenant as the applicant commenced the RT 21/42985 proceedings against the landlords as the first respondents and Relocorp Pty Ltd trading as Cousins & Co Real Estate (Relocorp) as the second respondent by filing an application containing the following details: 1. under the heading "Order/s Sought": "Section 187(1)(d) - An order as to compensation $15000 Section 175 - An order regarding the payment of a rental bond Section 217 - An order that personal information about a person in a residential tenancy database be wholly or partly removed, amended or not be listed Section 111 - An order declaring that a termination notice was or was not given in accordance with the Act Section 115 - An order declaring that a termination notice has no effect because it was a retaliatory notice" 1. under the heading "Reasons for the Order/s": "When my landlord / Agent became aware that there would be a moratorium on evictions for rental arrears they issued a no cause eviction. I believe based on the timing that this was intended to remove the uncertainty that the protection from the moratorium would create and therefore removed my ability to rely on that right. My rent was up to date at that time and would have been paid in full if they had not issued a no cause eviction notice which placed me under extreme financial pressure. I was late to the original hearing even though we were in the process of a good faith negotiation in relation to the rent and they sought orders that i believe misrepresented the status of our discussions. I requested the ability to store items in the garage until i could organise appropriate storage in the middle of stay at home orders and I was told that i could and then at the last moment i was told that if everything was not removed on the day the sheriff would forcibly remove me. I had no options and tried to remove items but was not able to. I was then provided 24 hrs to remove my items which was not possible and I was informed by my ex neighbour that they had all been dumped. I am seeking compensation for the items that they were required to hold for 14 days and only provided 24hrs. They sought orders for the full repayment of rent which are still in place. I have received notification that they have successfully applied for a subsidy from fair trading which requires an agreement with the tennant to wave the same amount of rent. We do not have that agreement in place and they have not informed me that they applied under my name for what amount and that it will be deducted from the outstanding balance. The landlord has indicated that they will seek reimbursement for the cost of dumping the goods left in the premises, i do not accept this as they have clearly not acted in good faith, have offered to allow me to store items in the garage and then removed it at the last moment and have misrepresented the status of our discussions at the tribunal." 1. On 25 October 2021, the landlords as the applicants commenced the RT 21/43989 proceedings against the tenant as the respondent by filing an application containing the following details: 1. under the heading "Order/s Sought": "Section 187(1)(c) - An order for the payment of an amount of money $3948.60" 1. under the heading "Reasons for the Order/s": "> THE TENANT HAD OUTSTANDING RENT OF $5,288.60 UP UNTIL THE VACATE DATE 4/09/2021. WE APPLIED FOR GOVERNMENT RENTAL RELIEF ON HIS BEHALF AND RECEIVED $3,000.00, WHICH WAS RECEIPTED TO THE TENANTS RENTAL LEDGER ON 27/09/2021. THEREFORE, THE OUTSTANDING RENT IS $2,288.60. > THE TENANT VACATED THE PROPERTY, RETURNED KEYS AND DELIVERED VACANT POSSESSION ON 04/09/2021. ON 06/09/2021, WE INSPECTED THE PROPERTY AND FOUND THAT IT HAD BEEN LEFT FULL OF RUBBISH/ITEMS. WE SENT THE TENANT AN EMAIL ON 06/09/2021 AFTER INSPECTING THE PROPERTY WE ADVISED THE TENANT THAT WE WOULD BE ARRANGING FOR EVERYTHING TO BE REMOVED THE FOLLOWING DAY, UNLESS HE ADVISED OTHERWISE. WE RECEIVED NO RESPONSE FROM THE TENANT. > THE TENANT THEN APPLIED FOR A STAY OF PROCEEDINGS FOR THE ORDERS THAT HAD BEEN MADE. THIS MATTER WAS DEALT WITH BY THE TRIBUNAL AND THE STAY ORDERS WERE REVOKED. > WE ARRANGED FOR THE RUBBISH REMOVAL AT A COST OF $2,000.00. EXTENSIVE GENERAL CLEANING WAS REQUIRED AT A COST OF $800.00. CARPET CLEANING/ REPAIR AT A COST OF $340.00. TENANT CUT A HOLE IN THE MIDDLE OF THE KITCHEN BENCH, REQUIRING IT TO BE REPLACED AT A COST OF $920.00. HE STILL HAS OUTSTANDING RENT AT AN AMOUNT OF $2,288.60. THEREFORE WE WISH TO MAKE A CLAIM FOR A TOTAL AMOUNT OF $3,948.60. > THIS FIGURE INCLUDES AN AMOUNT OF $2,400.00 WE RECEIVED FOR THE RENTAL BOND (P138482-6) WHICH HAS BEEN APPLIED." 1. On 5 November 2021, the Tribunal made orders for the removal of Relocorp as the second respondent in the RT 21/42985 proceedings, for the hearing together of the RT 21/42985 proceedings and the RT 21/43989 proceedings, and for the filing and service of evidence in both proceedings. 2. On 3 December 2021, the Tribunal heard both proceedings and reserved its decision. 3. On 7 December 2021, the Tribunal made the following orders and published reasons for its decision (the Tribunal Decision): 1. In relation to the landlord's application The tenant, CHRIS VAN BRUGGE (CARSIA PTY LTD), [premises at Cremorne], is to pay the landlord, ANTHONY FORESTO and STEVE FORESTO, C/- COUSINS AND CO REAL ESTATE SUITE 7 600 MILITARY Road MOSMAN NSW 2088 Australia, the sum of $2,010.00 minus $111.40 which is $1898.60 immediately. 2. In relation to the tenant's application, - the Tribunal finds that some of the tenant's wardrobes, beds, and electronics were improperly disposed of inconsistent with the Uncollected Goods Act 1995 but finds there is no basis for awarding any compensation on the evidence. - The balance of the tenant's application is dismissed." The Tribunal Decision 1. In the Tribunal Decision, the Tribunal relevantly: 1. set out the factual background and details of the proceedings between the parties in the Tribunal, and determined that the Tribunal had jurisdiction under the RT Act (at [1]-[6]); 2. determined that the tenant owed the rent claimed by the landlords, and after credit was given to the government grant of $3,000 there was a surplus of $111.40 in the tenant's favour subject to the landlords' claims (at [8]); 3. as to the landlords' claim for $2,000.00 for the removal of rubbish from the premises: 1. set out the tenant's response that he did not have sufficient time to organise the removal of the items given his vulnerable state and would have arranged removal of them had he been given the appropriate amount of notice under the Uncollected Goods Act 1995 (NSW) (UC Act) (at [14]); 2. held that most but not all of the items removed could be considered as rubbish, and that some of the larger items left in the premises and some of the electronics items constitute goods of value albeit less than $1,000 (at [15]); 3. held that the landlords did not comply with the process under the UC Act in disposing of these goods (at [16]-[17]); 4. held that the tenant breached the tenancy agreement by leaving rubbish items behind, and allowed $600.00 of the $2,000.00 claimed (at [18]); 1. as to the landlords' claim for $920.00 for the repair of damage to the kitchen benchtop resulting from an unauthorised alteration to have a wire travel through the bench: 1. set out the tenant's response that he made such the alteration because it was the only way to use the relevant power points (at [20]); 2. held that the tenant breached s 51 of the RT Act, and allowed $450.00 for the proposed repair (at [21]); 1. as to the landlords' claim for $800.00 for cleaning, held that the tenant breached s 51 of the RT Act, and allowed the claim in full (at [22]); 2. as to the landlords' claim for $340.00 for the carpet, being $160.00 for the repair of a rip and $180.00 for cleaning: 1. set out the tenant's response that the damage was fair wear and tear (at [24]); 2. held that the tenant damaged the carpet, and allowed the claim in full for the repair of the rip (at [24]); 3. allowed the claim for the cleaning of the carpet (at [25]); 1. held that the landlords were entitled to a money order of $1898.60, being the total of $600.00 for rubbish removal, $450.00 for the repair of damage to the kitchen benchtop, $800.00 for cleaning, and $160.00 for the repair of the rip in the carpet, less $111.40 owed to the tenant (at [26]); 2. as to the tenant's claim challenging the 8 July 2021 termination notice, it was misconceived (at [29]-[30]); 3. as to the tenant's claim challenging the 9 August 2021 termination notice, this claim ought to have been considered in the RT 21/38070 proceedings, and the principle of res judicata barred its reconsideration (at [31]-[33]); 4. as to the tenant's claim for compensation for the unauthorised disposal of his belongings: 1. held that the items did belong to the tenant (at [35]); 2. held that there was inadequate evidence of the value of the items and that they should be treated as having a value of less than $1,000.00 (at [35]-[36]); 3. held that it was appropriate to take into account the notional storage costs if they had been stored by the landlords pursuant to the UC Act, and that these storage costs would have exceeded the value of the goods (at [37]); 4. held that the tenant had not proved that he would have suffered a quantifiable loss (at [38]). The history of the appeal 1. On 22 December 2021, the tenant as the appellant commenced proceedings 2021/00362710 against the landlords as the respondents by filing: 1. a notice of appeal comprising 13 pages in which he appealed and sought leave to appeal on the following grounds: 1. his eviction from the premises was illegal; 2. the decision under appeal was not fair and equitable because: 1. his eviction from the premises was illegal because the stay was not lifted until 20 November 2021; 2. the landlords' agent had falsely stated on 3 September 2021 that the Sheriff would forcibly evict him at 9.00am on 4 September 2021; 3. he believes the carpet has been or will be replaced; 4. the landlords' agent had acted in a misleading and deceptive way on many occasions and he believes that he should not have "to incur the additional costs of cleaning rubbish removal, countertop repair, carpet repair, reduced residential support payment and loss of furniture"; 1. the decision under appeal was against the weight of evidence because the Tribunal should have placed more weight to his list of items and their replacement value; 2. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with) because the sheriff was not going to evict him at 9.00am on 4 September 2021; 1. documents comprising 42 pages including a list of furniture and belongings, and catalogue photographs of various items of furniture and handwritten notations as to their cost which were downloaded on 21 December 2021 and which are listed as being "Small sample of furniture in photos totalling $9,174 in retail"; 1. On 13 January 2022, the landlords filed a reply to appeal in which they opposed the appeal and leave to appeal being granted to the tenant. 2. On 21 January 2022, the Appeal Panel: 1. granted leave to the parties to be legally represented; 2. made procedural directions for the filing by the parties of any evidence on which they intended to rely including evidence before the Tribunal and a sound recording or transcript of the hearing of the Tribunal and written submissions; 3. fixed the hearing of the appeal on 21 March 2021. 1. On 4 March 2021, the tenant filed a bundle of documents comprising 116 pages which included submissions and a transcript of excerpts of the hearing of the Tribunal on 3 December 2021. 2. On 16 March 2021, the landlords filed a bundle of documents comprising 138 pages which included submissions and the statutory declaration of Mr Millane made on 16 March 2022 (the Millane declaration). The hearing of the appeal 1. On 21 March 2022, we heard the appeal by telephone. The tenant represented himself. The landlords were represented by their solicitor Mr P O'Grady. 2. At the commencement of the hearing we indicated that our preliminary view was that the Tribunal had made an error of law by taking into account the notional storage costs in determining the tenant's claim for compensation for the unauthorised disposal of his belongings. At our invitation the parties conducted negotiations and agreed that the appeal should be allowed in part and that the value of the tenant's belongings was $1,000.00. 3. During the hearing the tenant conceded that he had not appealed against the orders made on 20 September 2021 in the RT 21/38070 proceedings. 4. In addition to relying on their written submissions the tenant and the landlords made oral submissions. 5. During the course of making oral submissions in reply the tenant applied for an adjournment of the appeal to obtain evidence with respect to the ground of appeal that his eviction was illegal. We dismissed the application and delivered oral reasons for our decision. 6. The landlords applied for an order that the tenant pay two-thirds of their costs of the appeal. The parties agreed that a hearing of the landlords' application for the costs of the appeal could be dispensed with. 7. At the conclusion of the hearing we made the following orders: "1. The decision is reserved. 2. A hearing of the respondents' application for the costs of the appeal is dispensed with. 3. In relation to the respondents' application for the costs of the appeal: (1) the appellant is to file and serve written submissions limited to three pages by 28 March 2022; (2) the respondents are to file and serve written submissions in reply limited to two pages by 4 April 2022." 1. On 29 March 2022, the tenant provided his submissions on costs (the tenant's costs submissions). 2. On 4 April 2022, the landlords provided their submissions on costs in reply (the landlords' costs submissions). The scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 2. The Appeal Panel relevantly may make such orders as it considers appropriate in light of its decision on the appeal, including but not limited to any one or more of orders that the appeal is to be allowed, and the decision under appeal is to be set aside and for another decision is to be substituted for it: s 81(1)(a) and (d) of the NCAT Act. 3. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law which relevantly includes whether the Tribunal identified the wrong issue or asked the wrong question, and whether the Tribunal applied a wrong principle of law. 4. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 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). 1. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where: "… there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance." 1. In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that: 1. if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 of the NCAT Act; 2. the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach. 1. The test of whether evidence is reasonably available for the purpose of cl 12(1)(c) of Sch 4 of the NCAT Act is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]. 2. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. 3. In Collins, the Appeal Panel at [84] stated 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." 1. An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances specified in s 80(2)(b) of the NCAT Act: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. 2. Rule 25(4)(b) and (c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) relevantly provide that in the case of an appeal from the Tribunal Decision in relation to the claims under the RT Act and the UC Act an internal appeal must be lodged within 14 days and 28 days respectively from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision. 3. In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), the Appeal Panel at [13] stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The issues 1. We are satisfied that the appeal was commenced within the time of 14 days prescribed under r 25(4)(b) of the NCAT Rules for the RT 21/43989 proceedings, and within the time of 28 days prescribed under r 25(4)(c) of the NCAT Rules for the RT 21/42985 proceedings. 2. Having regard to the principles in Cominos at [13], we have discerned from the order challenged on appeal and the grounds of appeal in the notice of appeal, the material provided by the tenant, and the Tribunal decision the following six grounds of appeal: 1. ground 1: the Tribunal erred in not finding that the tenant's eviction from the premises was illegal; 2. ground 2: the Tribunal erred in not finding that the damages for cleaning and rubbish removal were occasioned by the misrepresentation of Mr Millane that the Sheriff would evict the tenant at 9.00am on 4 September 2021; 3. ground 3: the Tribunal erred in awarding damages for the repair of the rip in the carpet and the kitchen benchtop; 4. ground 4: the Tribunal erred in rejecting the tenant's claim for $15,000.00 for the unauthorised disposal of his belongings; 5. ground 5: the Tribunal erred in taking into account the notional storage costs in determining the tenant's claim for compensation for the unauthorised disposal of his belongings. 1. In addition to these grounds of appeal the landlords' application for the costs of the appeal arises for determination in this appeal. 2. It is convenient to deal with grounds 1 and 2, and grounds 4 and 5, together. Ground 1: the Tribunal erred in not finding that the tenant's eviction from the premises was illegal Ground 2: the Tribunal erred in not finding that the damages for cleaning and rubbish removal were occasioned by the misrepresentation of Mr Millane that the Sheriff would evict the tenant at 9.00am on 4 September 2021 Introduction 1. As we understand the position, the tenant contends that: 1. his eviction from the premises was illegal for the following reasons: 1. the 8 July 2021 termination notice, which was issued with a view to avoiding the predicted moratorium, was retaliatory; 2. at the time of the 9 August 2021 termination notice was issued he owed rent of $3,400.00. The landlords failed to make an application for $3,000.00 available under the residential tenancy support package. If they had done so and had used the rental bond of $2,400.00, then he would not have been in arrears on 30 August 2021; 3. Mr Millane had falsely stated on 3 September 2021 that the Sheriff would forcibly evict him at 9.00am on 4 September 2021; 1. the damages for cleaning and rubbish removal were occasioned by the misrepresentation of Mr Millane that the Sheriff would evict the tenant at 9.00am on 4 September 2021. He relied on this misrepresentation in vacating the premises and thereby lost the opportunity to clean the premises and remove his belongings. Consideration and determination 1. Section 115 of the RT Act deals with retaliatory evictions, and relevantly provides: 115 Retaliatory evictions (1) The Tribunal may, on application by a tenant or when considering an application for a termination order or in relation to a termination notice— (a) declare that a termination notice has no effect, or (b) refuse to make a termination order, if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application. (2) The Tribunal may find that a termination notice is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons— (a) the tenant had applied or proposed to apply to the Tribunal for an order, (b) the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law, (c) an order of the Tribunal was in force in relation to the landlord and tenant. … 1. There is authority of the Appeal Panel that s 115 of the RT Act is available as a defence to an application under ss 84 and/or 85 of the RT Act: Quader v Bell [2017] NSWCATAP 24 at [51]; Mercieca v Fu [2017] NSWCATAP 205 at [40]-[44]; Camilleri v Eastlake [2018] NSWCATAP 176 at [16]-[24]. 2. On 14 July 2021, the Residential Tenancies Regulation 2019 (NSW) was amended by the Residential Tenancies (COVID-19 Pandemic Emergency Response) Amendment Regulation 2021 (NSW) (the 2021 RT Regulation). The explanatory note of the 2021 RT Regulation provides: "The object of this Regulation is to exempt tenants who are financially impacted by the COVID-19 pandemic from the operation of provisions of the Residential Tenancies Act 2010 or the regulations made under that Act that would result in the termination of residential tenancy agreements or the recovery of possession of premises on the grounds of non-payment of rent or charges if the tenants continue to pay at least 25% of the rent payable under the agreement. The exemption will end at the end of 11 September 2021." 1. As the landlords did not rely on the 8 July 2021 termination notice in obtaining a termination order against the tenant on 30 August 2021, we do not accept the tenant's contention that the termination order was unlawful by reason of the issue of the 8 July 2021 termination notice. 2. The residential tenancy support package, which was introduced on 14 July 2021, relevantly provided financial assistance for landlords and tenants when rent was reduced. 3. On 24 August 2021 at 12.15pm, Mr Millane sent an email to the tenant advising that the landlords might be able to claim $3,000.00 under the residential tenancy support package, and requesting that he supply the required documents (the 24 August 2021 at 12.15pm email). 4. On 25 August 2021 at 2.38pm, the tenant sent an email to Mr Millane attached the requested documents (the 25 August 2021 at 2.38pm email). 5. On or shortly 4 September 2021, the parties lodged with NSW Fair Trading a Rent Variation Agreement due to COVID-19 dated 4 September 2021 which provided for a total rent waiver of $4,308.00 for the period from 14 July 2021 to 4 September 2021 (the rent variation agreement). 6. On 1 October 2021 at 2.51pm, NSW Fair Trading sent an email to the tenant advising that eligibility for payment under the residential tenancy support package was confirmed. 7. We do not accept the tenant's contention that the termination order was unlawful by reason of the availability of financial assistance under the residential tenancy support package as at 30 August 2021. There is no evidence that the tenant did not owe $5,053.81 to the landlords as at that date. The 24 August 2021 at 12.15pm email, the 25 August 2021 at 2.38pm email and the rent variation agreement do not establish that the tenant did not owe $5,053.81 to the landlords as at 30 August 2021. 8. There is a dispute between the parties as to whether Mr Millane pressured the tenant into giving vacant possession by lying to him that the Sheriff would be evicting him from the premises at 9.00am on 4 September 2021. This contention by the tenant is denied by Mr Millane in the Millane declaration. It is unnecessary for us to resolve this dispute in this appeal. 9. We are satisfied that the principles of res judicata, Anshun estoppel and abuse of process apply so as to prevent the contention of the tenant that his eviction was illegal being determined in this appeal. 10. In Matson v Attorney-General (No 2) [2022] FCA 213 (Matson (No 2)) at [42]-[46] Collier gave the following explanation of the principles of res judicata, Anshun estoppel and abuse of process: "[42] Principles of res judicata are well settled in Australia. As Fullagar J explained in Jackson v Goldsmith (1950) 81 CLR 446 at 466: … where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. This rule is not, to my mind, correctly classified under the heading of estoppel at all. It is a broad rule of public policy based on the principles expressed in the maxims 'interest reipublicae ut sit finis litium' and 'nemo debet bis vexari pro eadem causa.'" [43] Justice Fullagar was cited with approval by the plurality of Gibbs CJ and Mason and Aickin JJ in Port of Melbourne Authority v Anshun Proprietary Ltd (1981) 147 CLR 589 at 597, where their Honours went on to observe: The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding. [44] Principles of Anshun estoppel emerged from the decision of the High Court in Anshun. In particular I note the following observation of the plurality at 598: The critical issue, then, is whether the case falls within the extended principle expressed by Sir James Wigram V.C. in Henderson v. Henderson. The Vice-Chancellor expressed the principle in these terms: "where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." (footnotes omitted, emphasis added) [45] Subsequently in Tomlinson v Ramsey Food Processing (2015) 256 CLR 507, at 517, French CJ and Bell, Gageler and Keane JJ gave further explanation of Anshun estoppel as follows: Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding… The third form of estoppel is now most often referred to as "Anshun estoppel", although it is still sometimes referred to as the "extended principle" in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a "true estoppel" and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument. (footnotes omitted) [46] Their Honours in Tomlinson further discussed principles of abuse of process, as follows: 25. Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel. 26. Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel. (at 518-519) (footnotes omitted)" 1. In Matson (No 2) Collier J summarily dismissed an appeal in circumstances where the applicant sought to reagitate grounds that had been pressed and decided in previous proceedings and the majority of the applicant's proposed grounds of appeal were subject to res judicata, Anshun estoppel or abuse of process respectively. 2. It is an abuse of process to bring a proceeding in order to make a collateral attack upon an unappealed decision of a court, or upon a decision which, having been appealed, has been affirmed: Smits v Loel [2014] FCA 1341 at [67]; Smits v Loel (No 3) [2015] FCA 77 at [23(b)]; McLean v Power [2013] NSWSC 193 at [14]-[15]. 3. The Appeal Panel has recognised that the common law principle of estoppel that operates to preclude the raising of an issue of fact or law (or the assertion of a right or obligation) applies to decisions of the Tribunal: see, for example, Ravenscroft v Skinner [2016] NSWCATAP 107 at [8]-[14]; Mae v Ho and Ors [2021] NSWCATAP 5 at [72]; Bauer v Farm Cove Investments Pty Ltd [2022] NSWCATAP 14 at [58]-[59]. 4. As set out in the Tribunal Decision at [32], the tenant did not place before the Tribunal on 20 September 2021 in the RT 21/38070 proceedings any material on which he relied as to the invalidity of the termination order and the possession order. However, any challenge to the validity of the termination order and the possession order should have been raised in those proceedings. It was impermissible for the tenant to challenge these orders in the RT 21/42985 proceedings. While the Tribunal's rejection of this challenge was based on the principles of res judicata, they could equally have been based on the principles of Anshun estoppel and abuse of process. 5. To the extent that the tenant contends that he has a claim against the landlords by reason of his giving up possession of the premises on 4 September 2021 in reliance on the misrepresentation of Mr Millane that the Sheriff would evict him at 9.00am on 4 September 2021, then we do not accept that this claim was raised in the RT 21/42985 proceedings. As the tenant has not provided a complete transcript of the hearing we are not satisfied that this contention was the subject of evidence at the hearing. Further, this contention is not mentioned in the Tribunal Decision. It follows that this contention cannot be considered in this appeal. 6. For these reasons we reject grounds 1 and 2. Ground 3: the Tribunal erred in awarding damages for the repair of the rip in the carpet and the kitchen benchtop Introduction 1. As we understand the position, the tenant contends that: 1. the rip in the carpet was fair wear and tear; 2. the landlords agreed to the alteration of the kitchen benchtop; 3. damages should not have been awarded for the repair of the carpet and the kitchen benchtop when the landlords had not carried out the repairs. Consideration 1. The Tribunal considered and rejected the tenant's contention that the rip in the carpet was fair wear and tear. This was a factual finding. We are not satisfied that this finding was not fair or equitable or against the weight of evidence within cl 12(1)(a) and (b) of Sch 4 of the NCAT Act. In the absence of the documents received into evidence at the hearing and a complete transcript of the hearing, we are not in a position to consider whether the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach. 2. As the tenant has not provided a complete transcript of the hearing we are not satisfied that the contention the landlords agreed to the alteration of the kitchen benchtop was the subject of evidence at the hearing. Further, this contention is not mentioned in the Tribunal Decision. It follows that this contention cannot be considered in this appeal. 3. In Ellis's Town House Pty Ltd v Botan Pty Ltd [2017] NSWCA 20 (Ellis) the appellant landlord submitted that damages should not be awarded on a 'cost of cure' basis in a case where the painting and repair work had not been done by the tenant, and where there was an absence of evidence that the tenant had any intention to do the work. This meant the work was not necessary and the tenant had not suffered any loss. Gleeson JA at [25]-[26] set out the following principles (Leeming JA at [47] and Simpson JA at [61] agreeing): "[25] … It is not in dispute that the ordinary principles of contract law, including those of damages for breach of contract, apply to a lease: Progressive Mailing House v Tabali (1985) 157 CLR 17 at 29; [1985] HCA 14. It is also common ground that the 'ruling principle' with respect to damages at common law for breach of contract is that stated by Parke B in Robinson v Harman (1848) 1 Exch 850 at 855; 154 ER 363 at 365: … The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed. … See Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8 (Tabcorp) at [13]; Clark v Macourt (2013) 253 CLR 1; [2013] HCA 56 at [10] (Hayne J), [27] (Crennan and Bell JJ), [60] (Gageler J), [106]-[107] (Keane J). [26] The corollary of the principle in Robinson v Harman is that a plaintiff is not entitled, by an award of damages, for breach of contract, to be placed in a superior position to that which he or she would have been in had the contract been performed: The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 82; [1991] HCA 54; Tabcorp at [27] (Crennan and Bell JJ), [60] (Gageler J). However that does not mean, as Ellis seemed to suggest, that Botan had suffered no loss because it had not yet incurred any expenditure in connection with painting and repairing the leased premises." 1. In Ellis Leeming JA at [47]-[59] in making additional comments provided a detailed analysis for rejecting the landlord's submission that the tenant was entitled only to nominal damages, rather than damages measured by the cost of performing the work promised to be undertaken by the landlord, which the tenant had not incurred and might never incur. 2. Having regard to the principles in Ellis, the question of whether the landlords have actually or intend to repair the carpet and the kitchen benchtop is not a relevant consideration in determining the measure of damages recoverable by the landlords. 3. For these reasons we reject ground 3. Ground 4: the Tribunal erred in rejecting the tenant's claim for $15,000.00 for the unauthorised disposal of his belongings Ground 5: the Tribunal erred in taking into account the notional storage costs in determining the tenant's claim for compensation for the unauthorised disposal of his belongings Introduction 1. As we understand the position, the tenant contends: 1. that he is entitled to $15,000.00 for the unauthorised disposal of his belongings because he should recover their replacement value; 2. that the notional storage costs are not relevant in determining his claim for compensation for the unauthorised disposal of his belongings. Consideration and determination 1. The UC Act contains the following provisions: 1. section 3 which contains definitions: 3 Definitions In this Act— … depositor means the person who gives possession of goods (whether or not the person is the owner of the goods), and includes a bailor. dispose of includes sell or destroy. goods means all chattels personal, other than things excluded from this definition by the regulations. … receiver means the person who takes possession of goods, and includes a bailee. … 1. section 20 which deals with low value uncollected goods: 20 Low value uncollected goods (1) This section applies to uncollected goods with a value of less than $1,000 (low value uncollected goods). (2) A receiver may dispose of low value uncollected goods in an appropriate manner if the depositor— (a) has been given oral or written notice of the receiver's intention to dispose of the goods, and (b) has been given at least 14 days, from the date when notice was given, within which to collect the goods. (3) The receiver may move or store low value uncollected goods in an appropriate manner. 1. section 24 which deals with perishable goods and rubbish: 24 Perishable goods and rubbish (1) Nothing in this Part prevents a receiver from disposing of rubbish or perishable uncollected goods. (1A) A receiver is not required to give a depositor notice of the receiver's intention to dispose of the goods. (2) Goods may be disposed of under this section in such manner as the receiver considers appropriate. 1. section 31B which deals with orders by the Tribunal relating to uncollected goods: 31B Orders by Tribunal relating to uncollected goods (1) The Tribunal may, on application by a depositor or a person who has an interest in uncollected goods, make any of the following orders— (a) an order requiring the receiver to pay compensation for uncollected goods disposed of by the receiver otherwise than in accordance with this Act, … 1. The tenant's claim for compensation for the unauthorised disposal of his belongings was made under s 31B(1)(a) when read with the definitions of "depositor", "dispose of", "goods" and "receiver" in s 3 of the UC Act. It was common ground that the landlords did not give to the tenant the notice required under s 20(2)(a) of the UC Act. The goods the subject of this claim did not include rubbish or perishable uncollected goods pursuant to s 24 of the UC Act. There was no limit to the amount of compensation recoverable by the tenant. 2. In Powercor Australia Ltd v Thomas (2012) 43 VR 220; [2012] VSCA 87 (Powercor) at [28] Osborn JA noted that there was no appeal against following general principles (Warren CJ at [1] and Bongiorno JA at [2] agreeing): "B. That in general it is appropriate in determining damages which are to be awarded for the replacement of an item which is destroyed or damaged beyond repair to allow the cost of a new replacement. In the event that this leads to a superior replacement then an allowance should, if practicable, be made for that improvement or betterment. The onus of proving the level of improvement or betterment lies with the Defendant. C. Where the Defendant contends that it is practicable to replace the damaged or destroyed items with a substitute (other than a new replacement) then the Defendant bears the onus of establishing: (a) that a market exists for an available substitute; (b) the cost of such a substitute can be obtained at less than the replacement cost." 1. In Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; (2003) 196 ALR 257 (Placer) at [38] Hayne J said (Gleeson CJ, McHugh and Kirby JJ at [6] agreeing): "[38] It may be that, in at least some cases, it is necessary or desirable to distinguish between a case where a plaintiff cannot adduce precise evidence of what has been lost and a case where, although apparently able to do so, the plaintiff has not adduced such evidence. In the former kind of case it may be that estimation, if not guesswork, may be necessary in assessing the damages to be allowed. References to mere difficulty in estimating damages not relieving a court from the responsibility of estimating them as best it can may find their most apt application in cases of the former rather than the latter kind. …" (footnotes omitted) 1. Having regard to the general principles noted in Powercor at [28], we accept that the tenant was entitled to recover the cost of the replacement of his belongings subject to the landlords establishing an allowance for improvement or betterment, or the cost of substitute belongings. However, in circumstances where the tenant did not adduce any evidence of the value or replacement cost of his belongings as set out in the Tribunal Decision at [35], then in accordance with Placer at [38] the tenant did not establish any loss. 2. We are satisfied that the Tribunal made an error of law in taking into account the notional storage costs of the tenant's belongings. As the belongings were not stored there was no warrant to take storage costs into account. 3. In the light of the agreement of the parties as recorded in [28] above the tenant is entitled to recover $1,000.00 as compensation for the unauthorised disposal of his belongings. This amount should be set off against the amount that the tenant owes to the landlords. It is appropriate to allow the appeal in part, and with respect to the orders made by the Tribunal on 7 December 2021 to vary order 1 so that the tenant is to pay $898.60 to the landlords and to set aside the first subparagraph of order 2. The landlords' application for the costs of the appeal Introduction 1. The landlords' application is that the tenant should pay two-thirds of their costs of the appeal. The landlords submitted that there were three issues in the appeal, being the alleged illegal eviction of the tenant, the damages recoverable by the landlords for repairs, cleaning and rubbish removal, and the tenant's claim for compensation for the unauthorised disposal of his belongings. As they would be successful on the first two of these issues, the tenant should pay two-thirds of their costs of the appeal. Consideration and determination 1. In considering and determining this issue it is appropriate to set out the applicable statutory provisions and legal principles, and to summarise the submissions of the parties. 2. The NCAT Act contains the following provisions: 1. section 4 which contains definitions: 4 Definitions (1) In this Act— … procedural rules means each of the following— (a) the Tribunal rules, … Tribunal rules means the rules of the Tribunal made by the Rule Committee. … 1. Part 4 Division 1 (ss 35-38) which contains introductory provisions relating to the practice and procedure of the Tribunal. Section 35 deals with the application of Part 4: 35 Application of Part Each of the provisions of this Part is subject to enabling legislation and the procedural rules. 1. Part 4 Division 5 (ss 56-63) which contains provisions dealing with the determination of issues and proceedings. Section 60 deals with costs: 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— … (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. The NCAT Rules contain the following provisions: 1. rule 38 which deals with costs in the Consumer and Commercial Division of the Tribunal: 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— … (b) the amount claimed or in dispute in the proceedings is more than $30,000. 1. rule 38A which deals with costs in internal appeals: 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. We are satisfied that pursuant to s 35 when read with the definitions of "procedural rules" and "Tribunal rules" in s 4 of the NCAT Act r 38(2)(b) of the NCAT Rules did not apply to the RT 21/42985 proceedings and the RT 21/43989 proceedings. This is because the amount claimed by each of the tenant and the landlords did not exceed $30,000. Pursuant to r 38A of the NCAT Rules r 38(2)(b) of the NCAT Rules does not apply to the costs of the appeal. It follows that the position of each party paying their own costs specified in s 60(1) of the NCAT Act is applicable to the appeal unless the landlords can establish that they are entitled to an order for costs pursuant to s 60(2) of the NCAT Act. 2. "Special circumstances" in s 60(2) of the NCAT Act are circumstances that are out of the ordinary; they do not have to be extraordinary or exceptional circumstances: CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32]. 3. In considering whether special circumstances exist for the purposes of s 60(2) of the NCAT Act: 1. each case will depend upon on its own particular facts and circumstances: Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152 at [27]; 2. 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: eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]; 3. mere success (or failure) of an application does not give rise to special circumstances: The Owners – Strata Plan 5319 v Price [2020] NSWCATAP 245 (Price) at [46]; 4. where special circumstances are found to exist, the Tribunal has a discretion to exercise in deciding what, if any, order should be made. Relevant to the exercise of that discretion are those facts upon which the finding of special circumstances was based. However, those findings do not constitute the whole of the relevant matters to be considered in deciding what, if any, order for costs should be made. Rather, the principles applicable to awarding costs generally must also be taken into account: Brodyn Pty Ltd v Owners Corporation Strata Plan 73019 (No 2) [2016] NSWCATAP 224 at [24]. 1. In the tenant's costs submissions the tenant refers to s 60(1), (2) and (3)(c) and (e) of the NCAT Act and submits that there are no special circumstances that are significantly material to warrant an award of costs: "The primary part of the appeal was in relation to the failure of cousins to follow the uncollected goods act when they disposed of belongings within 48 hours of taking vacant profession. The secondary part of the appeal is in relation to the recovery of costs associated with cleaning, rubbish removal and repairs which relies in some part as to whether permission was obtained verbally from cousins for work done to the bench. The major part of the evidence was to demonstrate the deceptive behaviour of cousins in their dealings with the appellant and that where conflicting accounts of events occur, the behaviour of the respondent should have significant sway in determining the most likely version. The disposal of furniture under the uncollected goods act was overturned by the appeal in favour of the Appellant. I believe that these claims which make up the vast majority of the compensation claim do not represent a special circumstance in any of the items (c) or (e). In relation to the eviction being illegal, while this was dismissed due to the appeal not being made against the right hearing, I don't believe that this is significant enough to justify special circumstances for the following reasons: • this only represents a compensation claim of $1408 from the rental variation agreement that was not applied to the rental ledger (8% of the total claim) • This did not place a significant additional burden on the respondent in preparing for the appeal, • I was successful in the main issue before the appeals panel" 1. In the landlords' costs submissions the landlords refer to s 60 of the NCAT Act, and submit that there are special circumstances arising primarily out of the tenant's allegations – lacking in substance – of illegality, fraud, dishonesty and deceit: "Costs should be awarded to the landlords for the following reasons: • The issues upon which the landlords succeeded were not a minor part of the appeal, were significant and clearly dominant or separable. • The tenant should not be rewarded for making allegations – lacking in substance – of illegality, fraud, dishonesty and deceit. • The landlords took reasonable efforts to narrow the issues by making the concession referred to above. • A significant amount of time was taken up dealing with the tenant's unsuccessful issues." (footnotes omitted) 1. The determination of the landlords' application for the costs of the appeal involves answering the following two questions: 1. whether there are special circumstances warranting an award of costs in favour of the landlords; 2. if so, whether the discretion should be exercised to award costs. 1. We are not satisfied that there are special circumstances warranting an award of costs in favour of the landlords within s 60(2) of the NCAT Act as none of the factors in s 60(3)(a) to (g) of the NCAT Act are applicable. A compelling factor against any such finding is that the tenant has been partially successful in the appeal. None of the reasons relied on by the landlords constitute special circumstances warranting an award of costs in favour of them having regard to the factors in s 60(3)(a) to (g) of the NCAT Act. It is not surprising that the tenant did not understand the principles of res judicata, Anshun estoppel and abuse of process, and their application meant that his contention that he was entitled to damages for cleaning and rubbish removal on account of the misrepresentation of Mr Millane could not arise for determination in the appeal. The hearing of the appeal was not unreasonably prolonged by the need to consider the arguments of the tenant. The narrowing of issues arose at our initiative. The question of the separability of issues to be determined in an appeal, while relevant to the question of costs under rr 38 and 38A of the NCAT Rules, is not a special circumstance. 2. As we have not been satisfied of the condition in s 60(2) of the NCAT Act that there are special circumstances warranting an award of costs in favour of the respondent, then the question of whether the discretion should be exercised to award costs does not arise for decision. It follows that the landlords' costs application should be dismissed. Orders 1. We make the following orders: 1. the appeal is allowed in part; 2. order 1 made by the Tribunal on 7 December 2021 is varied so as to omit "which is $1898.60" and to substitute "and minus $1,000.00 (being the agreed value of the tenant's goods) which is $898.60"; 3. the first subparagraph of order 2 made by the Tribunal on 7 December 2021 is set aside; 4. the appeal is otherwise dismissed; 5. leave to appeal is refused; 6. the respondents' application that the appellant should pay two-thirds of their 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: 12 April 2022