Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Shousha v Owners Strata Plan No 2657 (No 2) [2022] NSWCATAP 114 Hearing dates: On the papers Date of orders: 14 April 2022 Decision date: 14 April 2022 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President C Fougere, Principal Member Decision: (1) A hearing on the question of whether there should be an order for costs of the appeal to be made in favour of the Respondent is dispensed with. (2) The Appellant is to pay the Respondent's costs of the appeal in an amount agreed or in the absence of agreement in an amount to be assessed. Catchwords: Appeal – costs of appeal – rule 38A Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: None cited Texts Cited: None cited Category: Principal judgment Parties: Samir Shousha (Appellant) The Owners Strata Plan No 2657 (Respondent) Representation: Solicitor: Appellant (self-represented) Thomas Martin Lawyers (Respondent) File Number(s): 2021/00271764 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil & Administrative Tribunal Jurisdiction: Consumer & Commercial Division Citation: Not applicable Date of Decision: 21 May 2021 Before: C Paull (Senior Member) File Number(s): SC 20/19171 REASONS FOR DECISION Background 1. This decision concerns the Respondent's application for an order that the Respondent's costs of the appeal be paid by the Appellant. 2. On 15 December 2021 we published our decision with respect to the appeal. We refused the Appellant's application to extend time for lodgment of the appeal in respect of the decision made at first instance published 21 May 2021 ( the Substantive Decision) and dismissed the appeal in respect of both the Substantive Decision and a later decision published on 20 August 2021 concerning costs at first instance (which we termed the Costs Decision). We also made directions for the Respondent to file submissions with respect to costs of the appeal and for the Appellant to file and serve submissions in opposition subsequent to the Respondent's submissions. Those submissions have since been received. 3. The Appellant had brought a number of claims against the Respondent and had sought compensation in an amount exceeding $30,000. Those claims were dismissed largely upon the basis that there was insufficient evidence to sheet home liability on the Respondent. The Appellant had also made application for an order for certain work to be done by the Respondent and the Appellant was successful in that regard. 4. The Tribunal, at first instance, then considered the Appellant's application for an order for costs and dismissed that application. 5. Our determination in the appeal was to the effect that the Appellant's appeal from the Substantive Decision was lodged approximately three months out of time and that time for lodgment of the appeal should not be extended. In coming to that decision we considered the Appellant's prospects of success and determined that there was no error of law in the Substantive Decision and nor a ground under clause 12 schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 6. In respect of the Costs Decision our view was that the member at first instance had a discretion with respect to awarding, or not awarding, costs and that we should not interfere with that discretion. There was no apparent error displayed by the Tribunal in the way it considered the issues before it. 7. Having outlined the progress of the proceedings thus far we will now turn to the submissions of the parties concerning costs of the appeal. The Respondent's Submissions 1. The Respondent's submissions refer to s 60 of the NCAT Act and to rules 38 and 38A of the Civil & Administrative Tribunal Rules 2014 (NSW) (the Rules). The effect of s 60 is that generally the position in the Tribunal is that each party is to pay their own costs of proceedings but that the Tribunal may award costs in proceedings where there are special circumstances warranting an award of costs. The effect of rule 38 is that, despite s 60, the Tribunal may award costs in proceedings to which the rule applies even in the absence of special circumstances warranting such an award if the amount claimed or in dispute in the proceedings is more than $30,000. The effect of rule 38A is that the Appeal Panel must in the case of an appeal apply the first instance costs provisions when deciding whether to award costs in relation to the appeal. 2. At first instance the Tribunal found that the Appellant's claim concerned an amount of more than $30,000 and thus rule 38 applied. At first instance the Tribunal decided not to exercise the discretion to award costs in favour of the Appellant. With respect to costs of the appeal, the Respondent submits that rule 38 applies due to the operation of rule 38A. 3. In short, the Respondent submits that the Appeal Panel may award costs of the appeal even in the absence of special circumstances and that in this case the Appeal Panel should do so because it ( the Respondent) should not have to suffer detriment in the appeal, merely because it sought to uphold the decision of the Tribunal at first instance which it maintained was correct. The Respondent has been wholly successful in defending the appeal and that it is appropriate for the Appeal Panel to exercise its discretion and award costs of the appeal. 4. The Respondent's submissions go on to submit that even if the Appeal Panel were to determine that rule 38A does not warrant an award of costs to the Respondent, such an award should nevertheless be made on the basis of the special circumstances prescribed by s 60(3). It is not necessary for us to describe those submissions having regard to the decision that we have made (as set out below). Appellant's Submissions 1. The Appellant's submissions seek to reargue the matters originally in dispute between the parties and to that extent those submissions have no relevance to our determination as to costs of the appeal. The Appellant's submission is basically that the Respondent's cost submissions are unfair and not equitable. The submissions refer to an email apparently sent by the Respondent's solicitors recommending an application be made for costs in order to deter the Appellant from making further applications against the Respondent. We decline to make any direct criticism of the solicitors because they have not been given an opportunity to comment upon the email. However we make the observation that an order for costs is not intended to act as a deterrent but rather to compensate the successful party for the costs incurred. Consideration 1. Both parties agree that we may determine costs of the appeal "on the papers" and dispense with a hearing. We are satisfied that we are able to determine the issues between the parties on the basis of the submissions supplied and without a hearing. Accordingly, we will make an order that a hearing be dispensed with. 2. There is no doubt that the proceedings at first instance were regulated by rule 38 and that the Tribunal was in the position of being able to award costs even in the absence of special circumstances. The Tribunal considered the Appellant's application for an order for costs but declined to exercise that discretion in favour of the Appellant. It is apparent from the reasoning that the Tribunal was influenced by the fact that the Appellant had been successful in one only of the five separate claims that he had brought. 3. In respect of the appeal, the Respondent has been wholly successful. As the Respondent's submissions state, the Respondent has been put to expense in defending the outcome at first instance. The Respondent is a body corporate (and has statutory obligations to protect the interests of lot owners in a strata scheme) and has incurred expense in engaging legal representation. As stated above an award for costs is intended to compensate the successful party (in this case the Respondent) for expense incurred and is not intended to punish the Appellant. There is no basis or reason identified by the Appellant or by us which would lead to the conclusion that we should not exercise our discretion to award costs. Having regard to the success of the Respondent and to the provisions of rules 38A and 38 we are of the opinion that costs of the appeal should be awarded in favour of the Respondent. Further as we stated when dismissing the appeal, the appeal from the Substantive Decision was filed out of time and we were of the opinion that no error of law was identified and nor was there a ground under cl 12 sch 4 of the NCAT Act identified. 4. Accordingly, we make the following orders: 1. A hearing on the question of whether there should be an order for costs of the appeal to be made in favour of the Respondent is dispensed with. 2. The Appellant is to pay the Respondent's costs of the appeal in an amount agreed or in the absence of agreement in an amount to be assessed. ************ 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: 14 April 2022