Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rona v Opes Lifestyle Homes Pty Ltd [2022] NSWCATAP 363 Hearing dates: 7 November 2022 Date of orders: 17 November 2022 Decision date: 17 November 2022 Jurisdiction: Appeal Panel Before: S Thode, Principal Member C Mulvey, Senior Member Decision: (1) The application to extend time for the filing of the Notice of Appeal is refused. (2) The appeal is otherwise dismissed. (3) The respondent shall file and serve submissions on the question of costs seven days after publication of these reasons. (4) The applicant shall file and serve submissions on the question of costs fourteen days after publication of these reasons. (5) The submissions should address whether a hearing on the question of costs can be dispensed with and whether the special circumstances provisions of ss60 of the NCAT Act apply. Catchwords: APPEALS – Home Building Act 1989 – decision against the weight of evidence- total failure of consideration Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Home Building Act 1989 Cases Cited: Bellgrove v Eldridge [1954] HCA 36 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Moody v M K Building Services Group Pty Ltd [2022] NSWCATAP 212 Luo v Zhai [2015] FCA 350 Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 Category: Principal judgment Parties: Andrew Robert Rona (Appellant) Opes Lifestyle Pty Ltd (Respondent) Representation: D Southwell Appellant D Vaughan Respondent File Number(s): 2022/00256564 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 10 May 2022 Before: C Paull, Senior Member File Number(s): HB 21/47303, HB 21/46061 REASONS FOR DECISION Background 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act") against a decision made in the Consumer and Commercial Division of the Tribunal on 10 May 2022. The matter concerns "residential building work" within the meaning of clause 2(1)(c) of Schedule 1 to the Home Building Act 1989 (NSW) (the HBA). 2. The parties entered into a contract for the carrying out of residential building work for the design and construction of five swimming pools at five different residences in North Kellyville. The appellant provided five plans. It became apparent to the respondent that the plans provided by the appellant were not fit for purpose because the plans did not disclose the correct volume for the five pools and despite several amendments the relevant Council rejected the pools' approval on the basis that the plans did not provide relevant information. 3. For these reasons, on about 29 March 2021 the contract was terminated by the respondent. 4. The appellant filed a statement of claim in Blacktown Local Court seeking payment of $49,000 being for a debt outstanding under the contract ("debt claim"). The matter was transferred to the Tribunal. The respondent commenced proceedings against the appellant seeking repayment of the $25,000 deposit paid for five plans and specifications. As the plans were rejected by Council for being insufficient the respondent sought a repayment of the $25,000 deposit as the plans were of no value or, as it was argued at the hearing, the total failure of consideration under the contract. 5. The appellant, contrary to directions of the Tribunal, failed to file any evidence in the proceedings. On 2 May 2022, the appellant sent an email to the Tribunal which was in the following terms "Dear NCAT we at Brilliant Pools rely on exactly the same information as provided by WHWLE (sic)." 1. The matter was heard on 10 May 2022. The appellant failed to appear. The Tribunal proceeded to hear the matter and published written reasons for decision on the same day, ordering the appellant to pay $25,000 to the respondent by 17 May 2022. The appellant's debt claim was dismissed for want of prosecution. The decision below 1. The following paragraphs contain the Senior Member's relevant findings: The first matter to which I first turned was Brilliant Pools cross – application. In the absence of any prosecution by Brilliant Pools of this application, I dismissed these proceedings. In turning to the OPES application, the legal representatives took the Tribunal to the written outline of submissions and the Folder of Documents filed 2/5/22 and marked into evidence as A1. From these documents, being the only evidence before the Tribunal, I am satisfied on balance that: 1. The parties entered into a contract for residential building work as that term is defined under the Home Building Act 1989. 2. Pursuant to the contract Opes paid Brilliant Pools a $25,000 deposit on or about 11 November 2022. 3. Pursuant to the contract Brilliant Pools commenced to design plans that were required to be submitted to the local council. 4. There then followed, from December 2020 until March 2021 a series of communications (pertinent to the plans Brilliant Pools was required to produce under the contract) involving not only the parties but most pertinently, the local council. I refer here in particular to the statement of Medhat Elaisawy and the attachments to the statement. 5. Notwithstanding this continual toing and froing Brilliant Pools was unable to produce plans that met what were the reasonable demands of the local council (especially the report of Clare Elizabeth Burdett). 6. As a result, on 28 March 2021, Opes wrote to Brilliant Pools terminating the contract. In light of the above I am satisfied, on balance, that Brilliant Pools showed itself either unwilling or unable to carry out its obligations under the contract leading to a complete failure of consideration and as such Opus is entitled to a refund of the $25,000 deposit. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s 80(2) of the NCAT Act. 2. 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: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. 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 Schedule 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 v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 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. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins v Urban, the Appeal Panel stated at [84] 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. Submissions and evidence 1. In deciding the appeal, the Appeal Panel has had regard to the following written material: 1. The Notice of Appeal lodged filed on 29 August 2022 and its attachments; 2. The appellant's written submissions and three affidavits dated 13 September 2022 and 23 August 2022. 3. The respondents' Reply to Appeal, the written submissions and their attachments, the affidavit of Michael Vaughan dated 12 September 2022. 1. The parties also made oral submissions at the hearing. Both parties were legally represented. 2. The Notice of Appeal and its attachments identified a number of findings in the Decision which the appellant believed to be wrong, with the result that he submitted that the order requiring him to pay to the respondents the sum of $25,000 should be set aside. At the beginning of the hearing the Appeal Panel formulated these issues into three distinct grounds of appeal. The appellant agreed with this formulation. 3. The grounds were that: 1. The Tribunal erred at law when the Tribunal concluded there was a complete failure of consideration because the Tribunal failed to consider the appellant's case for quantum meruit and/or restitution; 2. In the alternative, the appellant states that the first ground of appeal is a question of mixed fact and law and as such the appellant seeks leave to appeal. 3. The Tribunal erred at law when it awarded costs as Rule 38 of the Civil and Administrative Tribunal Rules 2013 was not enlivened and the Tribunal erred in awarding costs without a finding of special circumstances as the claim as made did not exceed $30,000. 1. Grounds 1 and 3 concern questions of law. In respect of ground 2, as we understand it, the appellant also seeks leave to appeal on the grounds that he may have suffered a substantial miscarriage of justice because the decision was not fair and equitable, the decision was against the weight of evidence or significant new evidence is now available that was not reasonably available at the time of the hearing. Notice of Appeal 1. The Notice of Appeal was lodged on 29 August 2022, which is outside the 28 day time period specified in cl 25(3) of the Civil and Administrative Tribunal Rules 2014 ("NCAT Rules"). Should time be extended 1. The appeal was not commenced within time. 2. The appellant received the Tribunal's reasons for decision on 10 May 2022. The appeal was not lodged until 29 August 2022, some twelve weeks beyond the 28 days allowed for filing the notice under Rule 25(4) the NCAT Rules. We may extend time for filing a notice of appeal under section 41 of the NCAT Act. 3. Accordingly, the appellant requires an extension of time to file the notice of appeal. In Kelly v Szatow [2020] NSWSC 407, the Court summarised the principles that apply to an extension of time to appeal. Relevant considerations include the length of the delay and any associated reasons for such, the strength of the plaintiff's case and consideration of whether the defendants would be prejudiced by a granting of the application: see Jackamarra v Krakouer (1998) 195 CLR 516 at [3]-[5]; Tomko v Palasty (No. 2) [2007] NSWCA 369 at [55]. 4. The appellant bears the onus of demonstrating that strict compliance with the timeframe would work an injustice: see Gallo v Dawson (1990) HCA 30; 93 ALR 479 in which, McHugh J said at [2]: [2] …The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935: 'The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.' 1. The extension of time required by the appellant is lengthy. In addition, the prospects of success of the appeal are a relevant consideration: see Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. 2. Because, in our opinion, the appeal lacks merit, as expanded upon below, we have decided to refuse the application for an extension of time. The explanation for the delay 1. The appellant contended that he missed the 28 day time limit for lodging an appeal because there was considerable argument between the parties about whether the orders should be amended under the "slip rule" and that this took up time. It is submitted that "the decision of Senior Member Paull was made on 4 August 2022 pursuant to section 63 of the [Act] and Mr Ronan's right of appeal should be measured from 4 August 2022, being the date that the orders were made by Senior Member Paull to include Mr Rona as the subject of orders 3 and 4." We are not persuaded that this is a reasonable explanation. 2. First, the slip rule is enlivened where there is an obvious error on the record. The reasons for decision published on 10 May 2022 ordered Brilliant Pools Pty Ltd, which was not a party to the proceedings or the contract, "to pay Opes Lifestyles Homes Pty Ltd costs forthwith." It was therefore not controversial, and ultimately not opposed that Mr Andrew Ronan, the only named respondent, was correctly substituted for Brilliant Pools Pty Ltd. Further, the amendment was not impugned on appeal and no point was taken by the appellant that the Tribunal erred in correcting the record under the slip rule. 3. Secondly, the reasons were published on 10 May 2022 and the grounds of appeal on which Mr Ronan proceeds were apparent to the appellant from that date. Thirdly, order 2 was made on 10 May 2022, ordering Mr Ronan to pay costs. Clearly the orders had a financial impact on Mr Ronan and he should have been alert to the relevant time limits for lodging an appeal, at least in respect of order 2. 4. The appellant also contended that because he was not legally represented when the decision was made the Appeal Panel is asked to suppose that Mr Rona did not appreciate the limitation period of 28 days. No evidence was filed in support of this. We give little weight to this submission. This is because the applicant was granted leave to be legally represented in the proceedings by order of the Tribunal on 8 December 2021. We also note that the applicant was legally represented from, no later than 18 June 2022, and despite this, he took a further sixty nine days to lodge his appeal (41 days longer than the 28 days permitted by rule 25(4) of the NCAT Rules). Merit of the appeal 1. As to the likely prospects of the appeal, the critical grounds of appeal on which the appellant relies is that the Tribunal failed to consider the contract, and that the contract provided that as long as engineering plans were provided, the appellant was entitled to be paid. However, as is described below in these reasons, we do not accept that the terms of the contract should be interpreted so that regardless of any defect in the plans, the appellant is entitled to be paid $25,000. 2. Further, we are not persuaded that strict compliance with the rules in this case will work as an injustice on the appellant. The evidence supports a finding that the plans were unable to meet the demands of council, were defective in many respects and that there was a complete failure of consideration. 3. In considering the extension of time we are required to consider the merits of the appeal. 4. The appellant relies on written submissions prepared by counsel. It is submitted the Tribunal erred because "it did not undertake the analysis required by the High Court in cases such as Lumbers v W Cook Builders Pty Ltd ( in liq) (2008) 232 CLR 635". We are referred to paragraph [79] of that decision: …an essential step in considering a claim in quantum meruit or money paid is to ask whether and how the claim fits with any particular contract the parties have made. It is essential to consider how the claim fits with contract the parties have made because as Lord Goff of Chievely rightly warned in Pan Ocean Shipping Co Ltd v Creditcorp Ltd (80) "serious difficulties arise if the law seeks to expand the law of restitution to redistribute risk for which provision has been made under an applicable contract." 1. It is submitted that the Tribunal erred when it made a finding of a complete failure of consideration without considering that the contract only stipulated the provision of plans, that the engineering plans were provided, and that "the respondent assumed the risk of getting approval from the local council". As the plans were provided, the contract was fulfilled and payment was rendered, the Tribunal erred in finding that the there was no consideration under the contract. 2. The appellant refers to page 199 of the tender bundle. The relevant contract clause is stated as follows: this proposal is split into separate and individual work orders.… Each Individual Work Order payment is due upon your instructions to commence that stage 1. And at page 201: Work Order No 1 Payment to commence Work Order: No 1=$2500 … OPES to set design and once these are received, BP to prepare Engineering Plans for approval by OPES 1. It is submitted that it was not open to the Senior Member to find that there was no consideration under the contract because: "there could have been some value in the drawings, even if they required more amendment". The fact that the plans were rejected by council was a "risk" the respondent assumed under the contract because the contract stipulated OPES was responsible for obtaining approval. The fact that the plans were not fit for their intended purpose, that is, to be approved by Council, is not a relevant consideration because the contract merely required engineering plans to be provided. 2. We consider that the merits of this ground of appeal are not strong. 3. First, there was no claim made by the appellant for restitution and/or quantum meruit to be taken into account by way of defence or set off. 4. Second, the appellant failed to appear at the hearing and tendered no evidence. In addition the appellant wrote to the Tribunal, instructing the Tribunal that he would "rely" on the respondent's evidence. 5. The Senior Member was, therefore, entitled to consider the respondent's evidence and to arrive at the findings she reached at [1] to [6] of the reasons for decision. 6. The respondent provided expert evidence that the plans were deficient in several respects, and also lay evidence that: "despite the issues that had been raised by Council with the plans, which were conveyed to Brilliant Pools they did not alter the plan so that they complied with the Council's requirements." (See statement of Medhat Eleisawy dated 29 April 2021 page 159 of the respondent's tender bundle). On 17 March 2021, the Council responded to the respondent with an email stating that: "the pool plan that was provided with all the applications are not to scale as I had indicated within previous correspondence." 7. On 29 March 2021 further correspondence was sent by Council to the respondent indicating that the plans provided had not included any setback dimensions of the proposed swimming pool from the boundaries, structures from the existing dwelling; the volume of the swimming pool and overflow tanks exceeded the dimensions indicated within the BASIX certificate; and the size of the pool and its location conflicted with the existing approved retaining walls location (see page 172 of the respondent's tender bundle). 8. The documents were not only available to the Tribunal Member, but also the appellant, who had failed to provide any evidence, wrote to the Tribunal before the hearing, indicating that he relied on the evidence of the respondent. It is our view, that the finding made by the Tribunal that: "there was a complete failure of consideration and as such OPES is entitled to a refund of the $25,000 deposit" was open to the Tribunal. Was there a total failure of consideration under the contract? 1. The appellant contends it was not open to the Tribunal to conclude there had been a complete failure of consideration and in doing so the Tribunal fell into error. 2. There are four possible explanations for the recovery of monies following a total failure of consideration under the contract: an action in debt; an action based on an implied term to repay the money; a common law action based on unjust enrichment; and an action in equity. As a result of the operation of the doctrine of accrued rights, money paid in advance where there is total failure of consideration should be recoverable as of right as a debt. In this case, a claim in restitution for monies had and received, where money had been paid for a consideration which had failed, (often referred to as a total failure of consideration) is available because, the contract was terminated for breach. 3. The Tribunal considered the contract, found a breach on the basis that the plans had been provided but were not fit for their intended purpose, i.e., OPES could not obtain approval for the five pools by reason of the plans' deficiencies, and the respondent was thus entitled to terminate the contract. 4. The Appeal Panel recently considered the issue of total failure of consideration in Moody v M K Building Services Group Pty Ltd [2022] NSWCATAP 212. Moody cited the decision of Luo v Zhai [2015] FCA 350 in which Perram J considered the question of total failure of consideration. His Honour said at [38] that this posed the question as one of substantiality. His Honour said that the receipt by the plaintiff of any substantial benefit under the agreement would deny him restitutionary relief, but the question then became what was substantial. 5. The respondent argued, as it did here, that the plaintiff had received profit and loss statements and thus received some benefit and had performed the term of the contract. It was argued by the respondent that the failure of consideration was, therefore, not total. His Honour said, at [36], that that fact would defeat Mr Luo's claim for moneys had and received unless one of two matters was established. The first was, if the benefit received was trivial or de minimis. The second was, if it could be shown that consideration was severable. His Honour went on to find that the receipt of the financial statements was trivial, or alternatively severable, and thus the consideration had totally failed. 6. The Appeal Panel in Moody considered: In Australia and New Zealand Banking Group Limited v Londish [2013] NSWSC 1423 Hall J noted at [25] that the High Court in David Securities Pty Limited v Commonwealth Bank of Australia (1992) 175 CLR 353 made clear that in some cases it may not be necessary to show a total failure of consideration for restitution to operate, particularly where consideration can be apportioned or where counter-restitution is relatively simple. His Honour noted that in Rover International Ltd v Cannon Film Ltd [1989] 1 WLR 912, cited with approval by the High Court in David Securities, the plaintiff succeeded in its claim for restitution of payments made to the defendant even though the defendant had performed some of its obligations under the contract. 1. In Rover International Kerr LJ, with whom Nicholls LJ agreed, said at p 923.G: "The question whether there has been a total failure of consideration is not answered by considering whether there was any consideration sufficient to support a contract or purported contract. The test is whether or not the party claiming total failure of consideration has in fact received any part of the benefit bargained for under the contract or purported contract." 1. Kerr LJ went on to say at p 923.H: "The relevant principles are set out in Chitty on Contracts, 25th ed. (1983), vol. 1, pp. 1091-1092, para. 1964 and the authorities there cited, to which we understand the judge was not referred. It is convenient to quote the following passages from the text: 'Where money has been paid under a transaction that is or becomes ineffective the payer may recover the money provided that the consideration for the payment has totally failed. Although the principle is not confined to contracts most of the cases are concerned with ineffective contracts. In that context failure of consideration occurs where the payer has not enjoyed the benefit of any part of what he bargained for. Thus, the failure is judged from the payer's point of view and 'when one is considering the law of failure of consideration and of the quasi-contractual right to recover money on that ground, it is generally speaking, not the promise which is referred to as the consideration, but the performance of the promise.' The failure has to be total. ... Thus, any performance of the actual thing promised, as determined by the contract, is fatal to recovery under this heading. "The role of the contractual specification means that it is not true to say that there can be a total failure of consideration only where the payer received no benefit at all in return for the payment. The concept of total failure of consideration can ignore real benefits received by the payer if they are not the benefit bargained for .... " 1. Thus, in this case, applying the principles in Moody, we conclude that there was a total failure of consideration if the benefit received by the respondent was trivial or the contract, was severable and consideration under the contract can be apportioned. 2. In the case before us, part of the contract involved the provision of engineering drawings and the contract was, as the appellant contended, severable. The drawings were provided but, as the Tribunal found on the available evidence, the appellant was unable to follow council's instructions to produce plans that were capable of approval by council. The work undertaken by the respondent was therefore of no use to the respondent or in the words of Chitty on Contracts (ibid), no real benefit was received by the payer as the mere provision of plans was not the benefit bargained for. The plans had to be of sufficient quality that they could achieve approval by council. The appellant was found to be incapable of rectifying the deficiency, a finding clearly available to the Member on the expert report tendered by the respondent, uncontested and untraversed by the appellant. 3. It follows, in our view that a finding of "total failure of consideration" was open to the Senior Member, the merits of the appeal in respect of first ground of appeal, error of law, are slim. 4. In respect of the second ground of appeal, in light of the explanation set out above, it would be unlikely that leave to appeal would be granted as the appellant who provided plans that were not fit for their intended purpose, cannot establish that he has suffered a substantial miscarriage of justice because the decision was not fair and equitable, or that the decision was against the weight of evidence or that significant new evidence is now available that was not reasonably available at the time of the hearing. Prospects of success - costs 1. As to the third ground of appeal, the question of costs, the appellant's main point is that the Tribunal fell into error in deciding that r 38 of the NCAT Rules applied when s. 60 of the NCAT Act should have been applied. Section 60 of the NCAT Act provides that costs may only be awarded unless special circumstances apply. 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. 1. However, costs follow the event and special circumstances need not be found if r 38 of the NCAT Rules applies, and if the amount claimed or in dispute in the proceedings is more than $30,000. 2. The parties agree that r 38(2)(b) is the relevant provision. 3. The appellant contends that the proceedings commenced by the respondent sought recovery of only $25,000 and that the amount in dispute therefore did not exceed $30,000. We note that the Senior Member heard and determined two sets of proceedings and the appeal was commenced in respect of both. The appellant's claim for $49,000 (HB 21/47303) was dismissed for want of prosecution as the appellant failed to appear. The amount claimed or in dispute in that proceeding exceeded $30,000 and the claim was determined. The second claim brought by the respondent sought recovery of the deposit "as the [respondent] never received any benefit." The Tribunal awarded costs in the following terms: "as noted the dispute related to a $25,000 claim for Opes and a claim for just over $49,000 by Brilliant Pools. In light of that amount of the dispute the costs application falls to be considered under rule 38 of the NCAT legislation which gives the Tribunal jurisdiction to award costs unhindered by the constrains of "special circumstances" as provided under s60 of that legislation." 1. Rule 38(2)(b) may also apply to proceedings where the orders sought in the proceedings depend upon the claimant proving there is a debt owed in order to establish an entitlement to the relief sought, and that amount is in dispute and is more than $30,000. 2. The appellant submits that only one award was made in the OPES matter and that award was for a claim as made under $25,000. This submission ignores the fact that there were two claims. The claim as made by the appellant which was well in excess of $30,000 was finally determined by the Tribunal and costs were applied for and awarded in respect of both applications. The dismissal of the appellant's claim has not been appealed or at least was no longer pressed before the Appeal Panel. In light of these facts we are of the view that the "amount claimed or in dispute" exceeded $30,000 and that there was no requirement by the cost applicant to establish special circumstances. We conclude that the merits of this ground of appeal are not strong. Conclusion 1. We have decided that the application to extend time to file the Notice of Appeal should be refused. 2. In any event, had we granted such an extension we would have dismissed the appeal on the basis that no error of law or basis for leave to appeal was established because of the same reasons that we have given concerning the appellant's prospects of success on appeal. Costs of the Appeal 1. The respondent seeks an order for costs of the appeal. 2. In respect of the costs of the appeal, our preliminary view is that by reason of rr 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) the amount claimed or in dispute in the appeal does not exceed $30,000 (Allen v Tricare (Hastings) Pty Ltd [2017] NSWCATAP 25 at [43]-[69]). Accordingly, the "special circumstances" costs provisions of ss 60 (1) and (2) of the NCAT Act do apply. 3. The respondent shall file and serve submissions on the question of costs seven days after publication of these reasons. 4. The applicant shall file and serve submissions on the question of costs fourteen days after publication of these reasons. 5. The submissions should address whether a hearing on the question of costs can be dispensed with and whether the special circumstances provisions of ss60 of the NCAT Act apply. Orders 1. The Appeal Panel makes the following orders: 1. The application to extend time for the filing of the Notice of Appeal is refused. 2. The appeal is otherwise dismissed. 3. The respondent shall file and serve submissions on the question of costs seven days after publication of these reasons. 4. The applicant shall file and serve submissions on the question of costs fourteen days after publication of these reasons. 5. The submissions should address whether a hearing on the question of costs can be dispensed with and whether the special circumstances provisions of ss60 of the NCAT Act apply. ********** 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: 17 November 2022