Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners – Strata Plan No. 16857 v Hyman (No2) [2023] NSWCATAP 58 Hearing dates: On the papers Date of orders: 28 February 2023 Decision date: 28 February 2023 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member Decision: (1) A hearing of the application for costs is dispensed with. (2) The appellant is to pay the respondents' costs of the appeal on the ordinary basis as agreed, or failing agreement as assessed. (3) Such costs must only be paid from contributions levied in respect of lots other than lots owned by the respondents. Catchwords: APPEAL – costs of appeal from interlocutory order of Consumer and Commercial Division – privilege attaching to expert report Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Oshlack v Richmond River Council 193 CLR 72; [1998] HCA 11 The Owners – Strata Plan No 16857 v Hyman [2022] NSWCATAP 358 Texts Cited: None cited Category: Costs Parties: The Owners - Strata Plan No. 16857 (Appellant) Peter Barnett Hyman (First Respondent) Janiene Hyman ( Second Respondent) Representation: Counsel: D Knoll AM (Respondents) Solicitors: Bannermans Lawyers (Appellant) DEA Lawyers Pty Ltd (Respondents) File Number(s): 2022/00309720 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 13 October 2022 Before: D Goldstein Senior Member File Number(s): SC 22/190709, SC 22/31671 REASONS FOR DECISION Summary 1. On 15 November 2022, I refused leave to appeal in these proceedings and made directions to resolve the respondents' application for their costs of the appeal. I indicated that the Appeal Panel may dispense with a hearing in respect of the application and determine it on the papers. The parties were given the opportunity to make submissions as to whether it would be appropriate to take that course. 2. The respondents complied with those directions and consented to the application being dealt with on the papers. The appellant did not lodge anything in response. As I am satisfied that the issues can be adequately determined in the absence of the parties by considering the written submissions lodged, I will make an order dispensing with a hearing. 3. I have also determined that the appellant should pay the respondents' costs of the appeal on the ordinary basis. Background 1. The background to the appeal is set out in the decision refusing leave: The Owners – Strata Plan No 16857 v Hyman [2022] NSWCATAP 358 ("Reasons"). These reasons assume familiarity with that decision. In short, though, the appellant had failed to satisfy the Tribunal at first instance that legal professional privilege attached to a draft expert's report it had caused to be prepared and then failed to satisfy me that it had established a proper basis for a grant of leave to appeal from that decision. The respondents' submissions 1. The respondents acknowledge that costs of the appeal are governed by s 60 of the Civil and Administrative Tribunal Act 2013 (NSW)(NCAT Act), and that, consequently, they need to demonstrate special circumstances warranting an order for their costs. 2. "Special circumstances" are circumstances that are out of the ordinary, but need not be exceptional or extraordinary: Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [60] (Santow J); Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]. Even if satisfied that there are special circumstances, the Appeal Panel must further be satisfied that they are circumstances "warranting an award of costs": Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103 at [21]. 3. An order for costs is made not for the purposes of punishing the unsuccessful party but rather for the purpose of providing a part indemnity to the successful party for their costs incurred: see Oshlack v Richmond River Council 193 CLR 72; [1998] HCA 11. 4. In determining whether there are special circumstances warranting an award of costs, I may have regard to the matters set out in s 60(3) of the NCAT Act. 5. The respondents submit that ss 60(3)(c),(e),(f) & (g) are engaged. They rely upon my findings that the appellant failed to identify any injustice beyond the merely arguable (Reasons at [37]) and seemingly overlooked that leave was required even if a question of law was identified: Reasons at [10]. They refer to my finding that the appellant did not really address the basis on which leave to appeal should be granted: Reasons at [11]. 6. The respondents submit that it is relevant that the legal principles applied at first instance were not in dispute and that the appellant never grappled with the central flaw in its case at first instance that there was "no direct evidence from the author of the Report [which] contributes to [its inability to make out its case] as there is a distinct lack of other probative evidence to support the appellant's position": Reasons at [42]. 7. The respondents note my findings as to the manifest inadequacy of the purported questions of law alleged by the appellant and my finding that "it was in my view entirely unexceptional that the Tribunal was not satisfied that the claim for privilege was made out.": Reasons at [40]. 8. I agree that those issues, taken together, are sufficient to demonstrate that there are special circumstances identified which warrant an order that the appellant pay the respondents' costs on the ordinary basis. 9. The respondents also seek consequent orders to ensure that the Owners Corporation pays the costs from funds they have not contributed to. Those orders are unopposed and, in principle, are appropriate to ensure that the effect of the costs order is not diluted. I have decided to consolidate and reword the proposed orders but to the same intent as sought by the respondents. Orders 1. My orders will be: 1. A hearing of the application for costs is dispensed with. 2. The appellant is to pay the respondents' costs of the appeal on the ordinary basis as agreed, or failing agreement as assessed. 3. Such costs must only be paid from contributions levied in respect of lots other than lots owned by the respondents. 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: 28 February 2023