Civil and Administrative Tribunal New South Wales Medium Neutral Citation: de Tarle v Newland (Costs No 2) [2023] NSWCATAP 20 Hearing dates: On the papers Date of orders: 01 February 2023 Decision date: 01 February 2023 Jurisdiction: Appeal Panel Before: S Thode, Principal Member P H Molony, Senior Member Decision: 1. A hearing on costs is dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013. 2. The application for an award of costs of the appeal is dismissed with the intent that each party bear their own costs. Catchwords: COSTS– costs of appeal – appellant's position not advanced as a result of successful appeal – s 60 of the Civil and Administrative Tribunal Act 2013 – no special circumstances – application for costs of the appeal dismissed. Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Strata Schemes Management Act 2015 Cases Cited: de Tarle v Newland [2022] NSWCATAP 148 de Tarle v Newland [2022] NSWCATAP 240 Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Texts Cited: None Cited Category: Principal judgment Parties: Benoit de Tarle (Appellant) Jan Newland (First Respondent) The Owners – Strata Plan No 576 (Second Respondent) Representation: Appellant (Self Represented) First Respondent (Self Represented.) Darren Ford (Strata Manager) (Second Respondent) File Number(s): 2021/00350892 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 11 November 2021 Before: S Hennings, General Member File Number(s): SC 21/27790 ReaSONS FOR DECISION Background 1. On 9 May 2021 we allowed the appellant's appeal against a decision of the Tribunal in SC 21/27790 which dismissed his application for costs of those proceedings, in which he was the second respondent. Those proceedings, in the Tribunal's Consumer and Commercial Division under the Strata Schemes Management Act 2015 (NSW) (the SSMA), had been withdrawn. The appellant had been joined as a party to those proceedings on his own application. The Tribunal had decided that the parties should each bear their own costs. On appeal we found that the appellant had been denied procedural fairness and therefore allowed the appeal. 2. In allowing the appeal we decided to redetermine the costs issue ourselves. Reasons for those orders and directions regarding the future management of the appeal were provided in de Tarle v Newland [2022] NSWCATAP 148. 3. On 20 July 2022 we too dismissed the appellant's application for costs in SC 21/27790 and published our reasons for doing so: see de Tarle v Newland (Costs) [2022] NSWCATAP 148. Both previous decision should be read together with this decision in order to gain a full understanding of the background. Both decisions were made on the papers without a hearing. The appellant's success in the appeal was a pyrrhic victory: he ended up with the same order he originally appealed against. 4. On 4 December 2022, the appellant made a miscellaneous application to the Appeal Panel in which he set out the "orders sought and grounds for application." This read: On 14 January 2022 the tribunal issued directions with order 10(2) being relevant to the present application. If any party wishes to make an application for costs of the appeal, that party is to lodge with the Appeal Panel and give to the other party any submissions on costs at the same time as their submissions in relation to the appeal. 2. The appellant made those submissions for costs of the appeal at the same time as his submissions for the appeal. On 7 May 2022 his appeal was successful and orders 2 and 3 from Il November 2021 on costs for SC21/27790 were set aside. 3. On 20 July 2022 the appeal panel redetermined costs for SC21/27790 as evidence by paragraph 27 of that decision but omitted to make a determination for costs of the appeal. 4. The appellant raised this concern with the tribunal on 20 July 2022 and again on 15 August 2022 with the registry advising to file an application for miscellaneous matters. 5. The appellant also requested to view the tribunal's file which contains additional but unsolicited submissions by the second respondent. These were made without leave and without notice or advice to the appellant and learnt after the decision. Almost identical circumstances occurred for the substantive application and then the costs application which was a reason for the appeal being successful and the original costs application being returned for redetermination. 6. The registry is yet to confirm a time to view the tribunal file. On 13 October 2022 the appellant was advised to expect a response in 21 to 28 days. 7. Aside from the intentions of the unsolicited submissions of the second respondent; all submissions in respect to costs of the appeal have been made by the respective parties. All that remains is for the matter of costs for the appeal to be determined pursuant to the orders. 1. Access to Tribunal files concerning which no confidentiality or non-disclosure orders have been made (which is the case here) is a matter for the Registrar, not us. Rule 42 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules) sets out the procedure to be followed. Insofar as the appellant's miscellaneous application seeks an order relating to access to the appeal file – which is unclear – it is misconceived and not a matter for us. 2. We did not deal with the issue of costs of the appeal, when determining the substantive appeal, because we were not aware that the appellant was seeking costs of the appeal. The effect of there being no order as to costs of the appeal was that each party would bear their own, which is the default position in appeals of this type under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). Despite the appellant's subsequent assertions that he was seeking costs of the appeal at that time, that was not our understanding from his notice of appeal and submissions. It would have been a relatively simple matter to have dealt with that application at the time had we been aware of it. This is so as the appellant says that he: '… considered any reasons and submissions for the award of costs of the appeal to be the same as those for the appeal.' (Appellant's submissions of 14 January 2013, para 7). 1. There were no submissions specifically addressing the costs of the appeal made by any party when we decided the appeal. 2. In addition, the issues on appeal at that time were made apparent to the appellant before we made the decision with respect to costs below. In our short reasons for refusing the appellant's application for a summons on 8 June 2022 we wrote, at [4]: 4. This (sic) only issue remaining in these proceedings is the appellant's application for costs of the initial proceedings before the Tribunal. Those proceedings have been withdrawn and are not before the Tribunal or the Appeal Panel. What is in issue is whether the appellant is entitled to an order for costs of those proceedings and the quantum of costs, if ordered. 1. Following receipt of the appellant's miscellaneous application the Appeal Panel issued directions to the parties for the filing of submissions on the issue of costs of the appeal. The appellant immediately sought an extension of time in which to make submissions. The parties were advised on 12 December 2022 that: The appellant has requested an extension of time request. This has been considered by the Appeal Panel. Parties may provide any information and or submission on the question of costs of the appeal by 14 January 2023 and submissions are limited to five pages in length. The Appeal Panel will then consider the application. Submissions on this issue must be lodged with the Tribunal and given to the other party by close of business on 14 January 2023. Both parties should also make any submissions about whether they object to an order being made dispensing with a hearing or if they consent to the application being dealt with on the papers (see s50(2) of the Civil and Administrative Tribunal Act 2013). Material before the Appeal Panel: 1. In considering the issue of costs of the appeal we have received the following additional materials provided by the parties. 1. From the appellant: 1. the miscellaneous application; and 2. submissions with attachments received 14 January 2022. 1. From the second respondent – written submissions from Bannermans Lawyers dated 16 January 2023. 1. Nothing has been received form the First Respondent. Appellant's objection to the Second Respondent's submissions. 1. The appellant objects to the Appeal Panel considering the submission of the Second Respondent from Bannermans Lawyers on two grounds: 1. they were filed two days late; and, 2. the Second Respondent has not been granted leave to be legally represented. 1. Under the order made on 12 December 2022 all submissions with respect to the issue of costs of the appeal were to be filed by close of business on 14 January 2023. Unfortunately, 14 January 2023 was a Saturday and the Tribunal Registry was closed. Rule 6(4) of the Civil and Administrative Tribunal Rules (NSW) (the NCAT Rules) provides that when, "a thing is to be done on, a day on which the Registry is closed, the thing may be done on the next day on which the Registry is open." The first day on which Registry was open after 14 January 2023 was Monday 16 January 2023, when the Second Respondent's submissions were filed. They were therefore filed in time. 2. The second respondent has not been granted leave to be legally represented in this appeal and, until the receipt of the submissions from Bannermans Lawyers, had been represented in the appeal by its Strata Manager. Bannermans Lawyers' submissions purport to be made on behalf of the second respondent, address the history of the matter, make submissions as to the relevant law, seek no order as to costs of the appeal, and an order for costs in the second respondent's favour with respect to the miscellaneous application. They also agreed to the issue of costs of the appeal being decided on the papers. 3. Given that leave has not been granted for the second respondent to be legally represented in the appeal proceedings, we think it would be unfair and unjust to the appellant to have now have regard to legal submissions from the second respondent's solicitors made for the first time, so late in the proceedings. As a result we will not consider their submission as leave to be legally represented has not been granted. Should the costs of the appeal being determined without a hearing? 1. Section 50 (2) to (4) of the CAT Act provide: (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. 1. In this case the parties were asked to indicate their views as whether the costs of the appeal can be decided on the papers. The appellant has said that he agrees. The first respondent has not responded. The correspondence from Bannermans Lawyers indicates agreement, although we have decided not to consider those submissions for reasons already given. Having reviewed all the materials we are satisfied that the costs of the appeal can be readily determined in the absence of the parties by considering the materials lodged by them. We therefore dispense with a hearing. Costs – the applicable law 1. Costs of an appeal are to be determined in accordance with s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) and r 38A of the NCAT Rules. 2. Section 60 provides: (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— (a) the costs of, or incidental to, proceedings in the Tribunal, and (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. Rule 38A (with r 38) provides an exception to section to s 60 with respect to certain matters in the Consumer and Commercial Division. They do not apply in the present case. Section 60 does. 2. As explained in our earlier decisions, the Tribunal's power to award costs is discretionary: Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6. The appellant submissions regarding costs of the appeal 1. Despite saying that his reasons for seeking cost of the appeal were the same as his reasons for the appeal, the appellant, in his submissions of 14 January 2023, argued that both respondents unnecessarily disadvantaged him in his conduct of the appeal, by not complying with Tribunal orders or directions and failing to co-operate with the Tribunal to provide a just, quick and cheap resolution of the dispute. 2. The appellant attached submissions he had previously made on 4 February 2022 and 25 February 2022, in which he argued his position on the appeal and made submissions, comments and allegations regarding the conduct of the respondents in replying to and defending the appeal. We have already considered those submissions. Consideration 1. In redetermining the original costs order on appeal in de Tarle v Newland [2022] NSWCATAP 240 at [15 - 26] we wrote: "In this case the first respondent withdrew her application to have the appellant removed from the strata committee of the second respondent under s 238(1)(a) of the Strata Schemes Management Act 2015 (NSW) after the appellant was not re-elected to that committee. When that occurred, the application became redundant, as the appellant ceased to hold office and could no longer be removed as a committee member. To allow the proceeding to continue once that occurred would have been unreasonable. The only reasonable thing for the first respondent to do was to withdraw the application. This she did as soon as she reasonably could as a result of changed circumstances. That this was a possible outcome of the proceedings was plain to the Tribunal and to the parties at the time the appellant was joined, on his own application, as a party to the removal proceedings on 21 June 2021. This was noted at the directions hearing on 27 August 2021, when the orders made reflected an intention to wait on the outcome of the upcoming election. In our opinion this is a case where the first respondent's decision to withdraw her application was made following a change in circumstances -the appellant not being re-elected to the strata committee - over which she had no control. It was a reasonable one. It was not a surrender or a capitulation, but an acknowledgement that due to a change in circumstances the proceedings were redundant. If she had tried to proceed with the application, then the appellant would have had a strong argument that she was wasting time and costs in pursuit of an untenable claim. It is clear from surveying the extensive submissions and materials relied on by the appellant, that he considers the application to remove him from the committee to have had no basis in fact or law. He seeks to have the conduct of the respondent's examined in the context of the costs application, essentially asking the Tribunal to make numerous findings of fact in his favour with respect to past and present conduct by the respondents. The determination of his costs application does not justify a hypothetical consideration of the motivation of the other parties for commencing the proceedings. Relevantly to s 60 of the NCAT Act the appellant submits that the application to have him removed for the strata committee was bound to fail because it was made immediately after his appointment and constituted an abuse of process. While this may be the case there were clearly issues to be determined while the appellant remained a member of the strata committee. All other parties supported his removal. The parties [material] shows that they were at odds with each other over past issues and questioned their respective conduct and motivations. In support of his application for costs the appellant alleged that the application was based on misleading and vilifying material. The application was said to be frivolous and vexatious, lacking in substance, and to have no tenable basis of law or fact. The appellant says that these amount to special circumstances under s 60 warranting a costs order in his favour. In short, he says the application should never have been made. The appellant complained that the size limit on his initial submissions to the Tribunal to 5 typed pages – with a similar limit on appeal – meant that he had considerable difficulty adducing evidence to prove the matters he is relying on with respect to costs. In reality - with attachments – he has submitted more that 200 pages of materials said to be relevant to the costs issue, mostly going to the substantive issue. He has also sought to summons recordings of Strata Committee meetings, asserting that they are relevant to the costs issue without explaining why. We do not think it plain that the initial application for the removal of the appellant from the strata committee was made unreasonably, or that the conduct of the proceedings – including their withdrawal when the appellant lost his place on that committee rendering the proceeding futile - were unreasonable: see Shellharbour City Council v Minister for Local Government [2017] NSWCA 256 at 6 per Basten JA, Macfarlan JA, Sackville AJA. In Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84 Basten JA said: 8 Secondly, although it is possible to make an order for costs against one party if it can be shown that it has invited the litigation by its unreasonable behaviour, or has unreasonably pursued the litigation, such an order should only be made where that judgment is manifest by reference to known circumstances, not in dispute between the parties. If the question cannot be answered without reviewing large swathes of evidence and resolving, on a tentative basis, disputed questions of fact, the task should not be embarked upon. 9 Thirdly, if contrary to the views set out above, it was appropriate to investigate whether the applicants or the respondent had been unreasonable, either in their conduct prior to the proceedings, or in their conduct of the proceedings, the approach adopted was untenable. Thus, regard was had to the motives of the respondent in commencing proceedings, but no account was taken of the motives of the applicants in capitulating. … See also Payne JA at 32. In this case the merits of the first respondent's commencement of the proceedings cannot be resolved "without reviewing large swathes of evidence and resolving, on a tentative basis, disputed questions of fact". The Appeal Panel is bound not to embark on such an inquiry and declines to do so. There is nothing in the parties conduct of the proceedings below which suggests they were conducted in a manner that would constitute special circumstance. The proceedings were withdrawn as a result of an intervening circumstance which meant they were of no utility. There are no special circumstances meriting an award of costs in the proceedings below under s 60. This means that each party is to pay their own costs of those proceedings." 1. For the same reasons we are of the view that the appellant has not demonstrated any special circumstances justifying the Appeal Panel making an order for costs under s 60 with respect to the cost of the appeal. We no not accept that the conduct of the first and second respondents was, on the material we are considering, such that it actively disadvantaged the appellant in his conduct of the appeal, or prolonged or complicated the appeal itself. In our view the appeal, while successful on a point of law, was always faced with difficulty on the merits. The applicant had been joined to the proceedings at his own requests and the proceedings were withdrawn a very short time thereafter when he lost his seat on the strata committee. His claim for costs of those proceedings was dubious. That turned out to be the case on reconsideration of the merits, after a successful appeal due to difficulties with procedural fairness. Given that decision, we think the appellant's application for costs of the appeal is similarly flawed. There are no special circumstances demonstrated by the appellant which would justify us departing from the usual position, that each party bear their own costs of the appeal. 2. We will dismiss the appellant's application for costs of the appeal with the intent that each party bear their own costs. To avoid any doubt, this includes the costs of the miscellaneous application. Orders 1. The Appeal Panel makes the following order with respect to its redetermination of the costs order in the initial proceedings: 1. A hearing on costs is dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013. 2. The application for an award of costs of the appeal is dismissed with the intent that each party bear their own costs. ********* 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: 01 February 2023