ZXJ v ZXK [2022] NSWCATAP 371

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZXJ v ZXK [2022] NSWCATAP 371 Hearing dates: 25 August 2022 Date of orders: 28 November 2022 Decision date: 28 November 2022 Jurisdiction: Appeal Panel Before: A Britton, Deputy President A Boxall, Senior Member M Bolt, General Member Decision: (1) The appeal is allowed in part. (2) The decision under appeal is set aside. (3) In substitution for that decision the appellant is awarded the costs thrown away up until 16 September 2021, in preparing to address issues other than the capacity of the appellant to manage her financial affairs. (4) The appellant and the first and second respondents must use their best endeavours to reach agreement on the amount of costs payable by the Daughters. (5) If agreement is not reached by 11 December 2022, the appellant must file and serve brief submissions setting out the amount claimed and submissions in support of that claim. (6) By 22 December 2022, the first and second respondents must file and serve brief submissions in reply. (7) By 23 December 2022, the appellant and the first and second respondents must notify the Tribunal, and each other, whether the issue of the orders to be made under s 60(4) of the NCAT Act can adequately be determined, without a hearing, by considering the parties' written submissions as permitted by s 50 of the NCAT Act. Catchwords: APPEALS – appeal from decision of the Guardianship Division of NCAT to refuse to award costs COSTS – meaning of "special circumstances" in s 60 Civil and Administrative Tribunal Act 2013 (NSW) – no mandatory considerations – whether Tribunal failed to have regard to a "substantial, clearly articulated argument" Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Guardianship Act 1987 (NSW) Powers of Attorney Act 2003 (NSW) Cases Cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26; 77 ALJR 1088 Gelder v The Owners - Strata Plan No 38308 [2021] NSWCATAP 109 House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40 James v Department of Justice (Corrective Services NSW) (No 2) [2022] NSWCATAP 216 Kaye v The Owners – Strata Plan No 4350 NSWSC 1386 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 OLL [2014] NSWCATGD 40 Youssef v NSW Legal Services Commissioner (Costs) [2020] NSWCATOD 115 Texts Cited: None cited Category: Principal judgment Parties: ZXJ (Appellant) ZXK (First Respondent) ZXL (Second Respondent) ZXO (Third Respondent) NSW Trustee and Guardian (Fourth Respondent) Representation: Counsel Mr L Ellison SC, Mr W Wilcher Mr M Hogg (First, Second Respondents)