Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners – Strata Plan No. 54545 v Hudson [2023] NSWCATAP 89 Hearing dates: On the papers Date of orders: 29 March 2023 Decision date: 29 March 2023 Jurisdiction: Appeal Panel Before: L Wilson, Senior Member M Gracie, Senior Member Decision: 1. By consent, an order dispensing with a hearing as the Appeal Panel is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions and other documents or material lodged with or provided to the Appeal Panel. 2. Refuse leave to appeal. 3. Dismiss the appeal. Catchwords: APPEAL- COSTS – appeal from Consumer and Commercial Division – hearing on the papers - s 60 Civil and Administrative Tribunal Act 2013 (NSW) - discretion – whether special circumstances – late withdrawal of application – whether appellant unnecessarily disadvantaged by conduct of the respondents - failure to articulate purported errors of law – principles in House v The King – no resolution passed by appellant to incur legal expenses – claim for legal expenses - no leave sought by appellant to be legally represented before Tribunal – ghost writing lawyer Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Regulations 2014 (NSW) Strata Schemes Management Act 2015 (NSW) Cases Cited: Arambewela v Castle Projects Pty Ltd [2018] NSWCATAP 14 Azzi v Phan [2017] NSWCATAP 215 Channell v Graham [2017] NSWCATAP 129 Collins v Urban [2014] NSWCATAP 17 CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 Croghan v Rees [2021] NSWCATAP 328 Dehsabzi v The Owners-Strata Plan No 83556 [2019] NSWCATAP 65 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 DVE18 v Minister for Home Affairs [2020] FCAFC 83; (2020) 276 FCR 401 eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 Goncalves v Bora Developments Pty Ltd [2021] NSWCATAP 231 House v King [1936] HCA 40; 55 CLR 499 Huang v Attapallil & Ors [2017] NSWCA 181 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 The Owners Corporation Strata Plan No. 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256. Pillay v Ku-ring-Gai Council [2015] NSWCATAP 83 Durran t/as Canberra Sheds and Outdoor Storage v Bliss [2018] NSWCATAP 43 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia: ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Shoal Bay Developments Pty Ltd v Community Association DP 270468 [2020] NSWCATAP 115 Solomons v Valley Motor Auctions [2017] NSWCATAP 31 The Owners-Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 The Owners-Strata Plan No 70871 v Turek [2022] NSWCATAP 83 Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 Texts Cited: None Category: Principal judgment Parties: The Owners – Strata Plan No. 54545 (Appellant) Nigel Hudson (First Respondent) Patricia Stokes (Second Respondent) Representation: Solicitors: Bugden Allen Graham Lawyers (Appellant) Respondents (Self represented) File Number(s): 2022/00286882 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Commercial and Consumer Division Citation: N/A Date of Decision: 29 August 2022 Before: K Ross, Senior Member File Number(s): SC 22/01557 REASONS FOR DECISION Introduction 1. By a Notice of Appeal filed on 26 September 2022, the Owners – Strata Plan No. 54545 ('appellant') appealed from a costs decision ('decision') made on 22 August 2022 in the Commercial and Consumer Division of the Tribunal ('Tribunal'). Nigel Hudson and Patricia Stokes ('respondents') are the owners of Lot 1 of Strata Plan 54545 ('Strata Plan'), a Strata Plan comprised of only 3 lots located at an address on the NSW Central Coast. The respondents were the applicants in the proceedings before the Tribunal. 2. On 12 January 2022 the respondents lodged a strata application against the appellant seeking an order that the appellant undertake repairs to comply with its obligations under s.106 of the Strata Schemes Management Act 2015 (NSW) ('SSMA') and an order that the Strata Plan have a compulsory manager appointed pursuant to s.237 of the SSMA. The respondents withdrew their application on 7 July 2022 which happened to be four days before it was listed for final hearing on 11 July 2022. 3. The next day, 8 July 2022, the appellant made an application for its costs to be paid by the respondents. The Tribunal dealt with that application by making these orders: On 8-JUL-2022 the following procedural directions were made: A request has been received by the Tribunal from the Respondent requesting costs. ORDERS 1. Any submissions or evidence upon which the respondent wishes to rely in support of its application for costs is to be provided, to the Tribunal and the applicant, by 22 July 2022. 2. Any submissions or evidence upon which the applicant wishes to rely in response application are to be provided, to the Tribunal and the respondent, 5 August 2022. 3. Those submissions should include an indication of whether the party agrees that the question of costs may be decided on the papers, ie without the need for a hearing. 1. The Tribunal listed the hearing on the question of costs for an in-person hearing on 29 August 2022, the same day the decision under appeal was delivered. 2. This appeal is being determined by us as the Appeal Panel pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ('NCAT Act') by dispensing with an in-person hearing, known as being determined "on the papers". This is a regular practice adopted by the Tribunal when dealing with the question of the costs of proceedings and also on occasions, such as this, when an appeal is only concerned with a challenge to a costs order made by the Tribunal. 3. At the callover for this appeal on 19 October 2022 Order 4 was: The Appeal Panel notes that the Appellant does not oppose the appeal being determined on the papers. The Appeal Panel may dispense with a hearing and determine the appeal on the basis of the written submissions and evidence provided. If the Respondents oppose this course they should make submissions on this issue when complying with the directions as to their submissions on the substantive appeal. 1. The respondents' submissions on costs "consent to the Appeals Panel dispensing with a hearing and determining the appeal on the basis of the written submissions and evidence". 2. The Appeal Panel has considered the submissions and other documents and materials lodged with the Tribunal and we are satisfied that the issues for determination can be adequately determined in the absence of the parties. 3. The appellant was legally represented for the appeal by Bugden Allen Graham Lawyers. The respondents filed a Reply to Appeal 26 October 2022. The respondents were self-represented for the appeal. 4. It was common ground before the Tribunal that s 60 of the NCAT applied to the determination of the application for costs. It was also common ground that r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) ('Rules') did not apply as there the amount claimed or in dispute in the proceedings did not exceed $30,000 (indeed there was no monetary amount claimed): referring to The Owners Corporation Strata Plan 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256. The presumption in s 60(1) of the NCAT Act is that each party is to pay its own costs of proceedings before the Tribunal unless "special circumstances" warrant a different order. 5. The sole issue on this appeal across all eight grounds of appeal concerns the appellant's challenge to the Tribunal's order in accordance with s 60(1) of the NCAT Act that each party pay its own costs of the proceedings before the Tribunal. 6. These are our reasons for refusing leave to appeal and dismissing the appeal. The decision 1. On 29 August 2022, the Tribunal gave reasons for its decision in relation to the appellant's application for costs. The Tribunal dismissed the costs application and ordered each party to pay their own costs of the proceedings. 2. Relevantly, the Tribunal found: 1. Section 60 of the NCAT Act applied; r 38 did not apply. 2. The respondents were not solely responsible for the listing of two directions hearings so that did not constitute "special circumstances" within the meaning of s 60(3) of the NCAT Act to award costs of the proceedings. 3. The withdrawal of the substantive application by the respondents did not constitute "special circumstances" within the meaning of s 60(3) of the NCAT Act. Representation before the Tribunal 1. The appellant was not legally represented in the proceedings below, in the sense that there was no lawyer openly acting on behalf of the appellant whose name and firm (if any) and contact details would ordinarily appear on the NCAT record for the purposes of communications between the parties and the Tribunal, the service of documents and the exchange of evidence and written submissions. 2. As the appellant has acknowledged in its written submissions, the appellant needed leave pursuant to s 45 of the NCAT Act for a lawyer (or any person) to appear as its representative at the Tribunal hearings. Leave was not sought for a lawyer to appear for the appellant in the proceedings below and certainly no order granting leave was made in any of the three directions hearings or in chambers. 3. At all times, the appellant was notionally represented by the owners of Lot 2 of the Strata Plan. However, it would not be in dispute (since part of the claim for costs before the Tribunal included legal fees of $23,950.20), that the appellant received extensive legal advice and assistance in the preparation of its evidence and written submissions. While purporting to be at all times the representative of the appellant (the pro se litigant), the owners of Lot 2 had lawyers who were undertaking the ligation work for the proceedings. In the United States, such a role is described as being a "ghost-writing lawyer". We will come back to this later in our reasons. 4. Suffice to observe for present purposes that the appellant submitted to the Tribunal that it did "not seek its costs of legal representation" but of its legal expenses as "it was not represented". Such legal expenses were said to include the provision of advice, the preparation of evidence and submissions and for which leave was not required under s 45 of the NCAT Act. 5. The respondents were self represented before the Tribunal but appear to have received some advice late in the proceedings and prior to the withdrawal from J S Mueller and Co, Lawyers. The appellant contends that the "more likely explanation for the withdrawal is that [the respondents] took last-minute legal advice about the prospects of their application." 6. The first set of submissions on behalf of the appellant on the application for costs dated 22 July 2022 was prepared under the name of the owners of Lot 2 but appear to have been prepared a lawyer, presumably by Bugden Allen Graham Lawyers. 7. Then, when the question of costs of the proceedings was before the Tribunal, the lawyers for both parties then thought it appropriate to provide written submissions to the Tribunal under their own names to assist the Tribunal in its deliberation on whether it should accede to the appellant's application for the costs of the proceedings before the Tribunal. 8. J S Mueller & Co sought leave to represent the respondents on the question of costs before the Tribunal and provided a submission in response to the appellant dated 4 August 2022. 9. Bugden Allen Graham Lawyers then sought leave to act for the appellant in lodging the appellant's second set of submissions on costs with the Tribunal dated 5 August 2022. 10. A short "rejoinder" submission was provided by J S Mueller & Co dated 12 August 2022. Notice of Appeal 1. The Notice of Appeal nominated Bugden Allen Graham Lawyers as the appellant's legal representative. The appellant's folder of documents and written submissions lodged for the appeal on 9 November 2022 were signed by the solicitor on the record with the carriage of the appellant's matter, along with that solicitor's name and the name of the appellant's law firm. The appellant also lodged 2 volumes of documents comprising the material lodged by them with the Tribunal below. 2. The Notice of Appeal referred to the firm of J S Mueller & Co, Lawyers as being the respondent's "representative" however the respondents were self represented on the appeal. 3. The respondents did not record having a "representative" in their Reply to Appeal lodged on 26 October 2022. The respondents' evidence and submissions lodged in the Appeal were provided under their "own hand" and do not have the appearance of having been prepared by a legal representative. The respondent's submissions comprised submissions and 2 volumes of material lodged on 23 November 2022 Statutory basis of an appeal 1. Section 80(2) of the NCAT Act provides that an internal appeal (which this is) may be made as of right to the Appeal Panel on a question of law and otherwise with the leave (that is, with the permission) of the Appeal Panel. 2. An internal appeal is not a re-hearing of the original decision or a mere opportunity for a party dissatisfied with the outcome of a decision to re-argue its case: eg Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]: An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. 1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel set out a non-exclusive list of questions of law including whether there has been a failure to provide proper reasons, whether there was a failure to afford procedural fairness, and whether the Tribunal failed to consider relevant (i.e. mandatory) considerations. 2. An error on a question of law of law will also occur where there is a material failure by the Tribunal to respond to a "substantial, clearly articulated argument relying upon established facts" that may be characterised either as a failure to afford natural justice or as a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24]–[25] (Gummow and Callinan JJ; Hayne J agreeing at [95]); DVE18 v Minister for Home Affairs [2020] FCAFC 83; (2020) 276 FCR 401 at [34]; followed by the Appeal Panel in Goncalves v Bora Developments Pty Ltd [2021] NSWCATAP 231 (Goncalves) at [9(2)]. 3. A failure to deal with evidence may also in certain circumstances be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence. By s 38(6)(a) of the NCAT Act, the Tribunal "is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings." This obligation includes an obligation to have regard to material which has been disclosed to the Tribunal and which is relevant to the facts in issue, at least where that material is of some significance: Goncalves v Bora Developments Pty Ltd; Bora Developments Pty Ltd v Goncalves [2020] NSWCATAP 9 at [28]; Croghan v Rees [2021] NSWCATAP 328 at [40]. 4. In the absence of any question of law raised by an appeal, 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 Sch 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. there was significant new 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), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 may have been suffered where "there was a significant possibility", or "a chance that was fairly open", that a different and more favourable result would have been achieved for the appellant had the relevant circumstances in cl 12(1)(a) or (b) of Sch 4 not occurred or if any "new" evidence under cl 12(1)(c) had been before the Tribunal at first instance. 2. Further, even if an appellant from the decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal. In Collins, the Appeal Panel at [84(2)] stated that ordinarily it is appropriate to grant leave to appeal only in certain matters. Those types of matters include issues of principle, questions of public importance, an injustice which is reasonably clear so that it would be unjust to allow the finding to stand, a factual error that was unreasonably arrived at and clearly mistaken, or where the Tribunal went about the fact-finding process 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. Leave to Appeal 1. Section 6.B of the Notice of Appeal acknowledged that leave to appeal is required from the costs decision made in the Commercial and Consumer Division of the Tribunal. 2. At Section 6 of the Notice of Appeal, the issues raised on the appeal are focussed on the Tribunal's failure to consider material that was available, to allow the Tribunal to be satisfied that the respondents were responsible for the relisting of the proceedings (on two occasions) and that this may have affected the appellant's opportunity to succeed in its costs application. 3. There is no mention of the late withdrawal of the proceedings by the respondent. 4. However, in an Annexure (Annexure "A") to the Notice of Appeal, there are eight listed grounds of appeal. Unlike the basis on which leave to appeal is sought in the Notice of Appeal itself, there are seven grounds of appeal that commence with the words: "The Tribunal erred in law …". Only ground 4 in Annexure "A" is presented as raising an error of fact and not a question of law (although as we explain later in these reasons, this position changed and grounds four and five were dealt with collectively in the appellant's submissions as errors of fact). Consideration Grounds 4 and 5 1. For the reasons just set out, it was not entirely clear how the appellant was running its appeal: whether it was a matter for which leave was required as set out in its Notice of Appeal or having regard to the seven grounds of the appeal in Annexure "A" that contended errors of law; or whether we are to infer that it was an appeal on mixed errors of fact and mixed errors of law. 2. The Notice of Appeal at Section 6.B stated the following in relation to the grounds for which leave to appeal was sought (referring to the applicant and respondents in their respective capacities in the proceedings below): The decision of the Divisional Member that she was not satisfied that the Applicants were solely responsible for the circumstances in which the application was relisted was unfair and inequitable. The Member failed to consider material available to her under s 38 (2) of the [NCAT] Act, although not properly "evidence," and this may have deprived the Respondent of satisfying the Tribunal that the Applicants were responsible for those circumstances, in particular, the Applicants' failure to comply with the directions of the Tribunal. The decision may accordingly have affected the Respondent's prospects on its application for costs, and thereby caused a substantial miscarriage of justice. 1. There is a tension between the Notice of Appeal acknowledging that leave to appeal is required by providing an explanation of why the decision was not fair and equitable as a reason for granting leave, but then in a separate but related document, raise seven separate purported errors of law. 2. There is yet a further twist to the appellant's position on the appeal. The written submissions signed and filed by the appellant's lawyers on 9 November 2022, without explanation, deal with Grounds 4 and 5 as a (combined) "mistake of fact affecting [the] exercise of the discretion". We have therefore dealt with Grounds 4 and 5 as matters for which leave to appeal is required as neither ground is now put as raising a question of law. 3. We have done our best to understand and reconcile that contention as it has been expressed in the Notice of Appeal with Grounds 4 and 5 in Annexure "A" (the two of the eight grounds of appeal in Annexure "A" put as an error of fact and for which leave to appeal is required). 4. Ground 4 contended that the Tribunal erred in failing to find that the respondents were "solely or materially responsible for circumstances which lead to the application being relisted on a number of occasions." 5. Ground 5 contended that the Tribunal made an "implicit finding" that unless the respondents were "solely responsible" for the "circumstances" (ie: referred to in Ground 4), then other circumstances would not constitute "special circumstances" warranting an award of cost under s 60(3) of the NCAT Act. 6. The appellant's submissions in relation to these two (combined) grounds of appeal essentially raise the same issue which is to the effect that the respondents' were "solely and materially responsible for the issues which gave rise to the relisting [of the proceedings] on two occasions …" 7. There are at least three answers to these combined grounds of appeal. 8. First, the appellant itself accepts that the issues the subject of the two occasions for the relisting of the matter are "subsidiary issues" to the main issue that concerned the late withdrawal of the application. 9. Secondly, case management is an inherent aspect of modern litigation both in the courts and this Tribunal. The need to relist matters to resolve pre-trial issues is not unusual and at times is to be encouraged. The Tribunal found that there were justifiable reasons to have the proceedings relisted and we are not in any position to question that finding as follows: I am not satisfied that the applicants were solely responsible for the issues which led to the matter being re listed for directions on two occasions. The fact is that the parties required the assistance of the Tribunal to resolve disputes between them about access and around the evidence to be provided, including issues of destructive investigation. The Tribunal did not make any findings adverse to either party in relation the relisting of the application for directions on either occasion. 1. Thirdly, the appellant was not legally represented at either of the two directions hearings. 2. We accept that it was open to the Tribunal to find that the two directions hearings in this matter would not constitute "special circumstances". 3. The appellant has not demonstrated an arguable case to warrant the granting of leave to appeal under Grounds 4 and 5 of Annexure "A" to the Notice of Appeal on the basis that the Tribunal's finding was not fair and equitable so as to have caused a substantial miscarriage of justice. Even if we had been satisfied that the grounds referred to in Cl 12(1) of Sch 4 of the NCAT Act had been made out (which we are not), we would have refused leave to appeal in accordance with the principles in Collins v Urban. This is an appeal from a purely discretionary decision on costs and does not raise any issues of principle, questions of public importance or an injustice which is reasonably clear. 4. We refuse lave to appeal in respect of Grounds 4 and 5 of Annexure "A" to the Notice of Appeal. Consideration Questions of law 1. As we have stated above, seven of the eight grounds of appeal in Annexure "A" to the Notice of Appeal are raised as errors of law but Ground 5 (as discussed above) became a purported error or fact as part of Ground 4. We will therefore deal with the remaining six grounds of appeal in the same order that they are raised in Annexure "A" and in the appellant's written submissions on the appeal. 2. The six grounds of appeal that raise a purported error of law, as we will now discuss, concern the issue of whether "special circumstances" were established and invoke a grab-bag of contentions that: 1. involve considerable overlap; 2. raise internally inconsistent propositions; and 3. assert rather than demonstrate errors of law. Grounds 1 and 2 – failure to determine question of special circumstances through misunderstanding of application 1. Grounds 1 and 2 of Annexure "A" are dealt with together in the appellant's submissions. The appellant contends that the Tribunal misunderstood or mischaracterised the issue to determine "special circumstances" as "whether the [respondent's] conduct unnecessarily disadvantaged the Owner's Corporation" (emphasis in the original). 2. We can discern no error of law in these combined grounds or any error by the Tribunal in having regard to the words in s 60(3)(a) that special circumstances may be found where "a party has conducted proceedings in a way that unnecessarily disadvantaged another party to the proceedings" (our emphasis). 3. The appellant's application for costs before the Tribunal dated 22 July 2022 ('application for costs') was primarily founded on the contention that "the Owners Corporation has been exposed to significant unnecessary expense as a result of the actions" by the respondent. 4. In our assessment, the "particulars" (our terminology) of those "actions" or "conduct" and the "unnecessary expense" referred to in the application for costs concern two matters as to whether "special circumstances" were made out, namely: 1. The costs of two directions hearing; and 2. the costs of the hearing or the proceedings being vacated due to the late withdrawal of the application. 1. The appellant's submission to the Tribunal dated 22 July 2022 stated, relevantly (again referring to the applicant and respondents in their respective capacities in the proceedings below): It is evident that the Owners Corporation has been exposed to significant unnecessary expense as a result of the actions of the Applicants. And: The Applicants cannot be allowed to take matters to NCAT (twice now) only to withdraw their application once they received the Respondent's statements, especially when significant costs are incurred by the Respondent in preparation of their response(s). 1. In its submissions on this appeal, the appellant contended a different emphasis in that: The basis of the application for costs, more precisely, was the late withdrawal of the application after the preparation and service of the Owner's Corporation evidence, Scott Schedule and submissions, at considerable expense. 1. As we understand the submissions before the Tribunal and on the appeal, the matters that the appellant contended as "special circumstances" were those referred to above. If they did not disadvantage the appellant, then it is difficult to know why they would constitute a ground giving rise to "special circumstances". It seems that the appellant have proceeded on the mistaken basis set out in its submissions to the Tribunal that "in the normal course, an applicant's withdrawal of a contested application shortly before the hearing, whose conduct of the matter had required the relisting of the matter on several occasions, would constitute special circumstances". 2. This was dealt with in the appellant's further submissions to the Tribunal dated 5 August 2022, in which the appellant relied on the dicta of McHugh J in Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia: ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 (Lai Qin). The appellant submitted that Lai Qin established a "general principle" in relation to the question of costs where there has been no determination of the merits of a matter due to a late withdrawal or discontinuance by a party. 3. In Lai Qin, McHugh J relevantly said: In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in The South East Queensland Electricity Board v Australian Telecommunications Commission where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare. If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases. 1. The Tribunal did not need to make any assessment of the relative merits of the parties' claims in the sense referred to in Lai Qin. In the absence of a determination on the merits and an inability to determine the likely outcome, the default position for a Court or Tribunal is to order each party to pay its own costs (reflected in s 60(1) NCAT Act), subject to the two considerations discussed by McHugh J in Lai Qin. 2. The first is where one party has acted so unreasonably that the other party may obtain its costs. The second is that where both parties have acted reasonably, one party was almost certain to have succeeded had the matter been fully tried. 3. The appellant also sought its costs of the entire proceedings. Often, the late withdrawal of an application before a hearing may give rise to an application for costs "thrown away" from the time of the withdrawal. In this case, the late withdrawal did not or should not have occasioned any additional costs to the appellant. The appellant was self represented in the sense explained above and would not have incurred the costs of legal representation at the hearing being "thrown away". 4. In our opinion, there was no error in the exercise of the Tribunal's discretion in the sense required in House v King [1936] HCA 40; 55 CLR 499 at 505 (House v King); namely some error in exercising the discretion from which we may infer, having regard to the facts, that the exercise of the discretion was wrong in principle, unreasonable or unjust. To the contrary, we find that the conclusions and findings of the Tribunal were sound and open on the evidence and were consistent with the opinion of McHugh J cited above that it was open for the Tribunal to adopt the "approach [that] has been adopted in a large number of cases", namely that in the absence of unreasonable conduct, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. 5. The appellant does not seek to engage or mention how the principles in House v King are enlivened on this appeal. In its reasons, the Tribunal carefully set out the parties' respective submissions on costs, the evidence to which it had regard and its reasons demonstrated a discernible process of reasoning in reaching its finding that each party pay its own costs of the proceedings. The Tribunal identified the various matters under consideration and the relative weight given to each of those matters in the balancing exercise to be undertaken. Section 60(3) NCAT Act – "special circumstances" 1. Section 60(3) of the NCAT Act has been considered in numerous cases by both the Tribunal at first instance and by the Appeal Panel. From these cases several general principles can be distilled. 2. First, the words "special circumstances" refer to circumstances that are out of the ordinary, but not necessarily extraordinary of exceptional: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 (CPD Holdings) at [23]-[31]; and eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 (eMove) at [48]; 3. Second, even if one or more of the considerations listed in section 60(3) are made out, this is not of itself sufficient to require that a costs order be made: Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [81]. In relation to this, not only must the party seeking an order for costs establish that "special circumstances" exist, that party must also establish that these "special circumstances" warrant the Tribunal departing from the general rule under s 60(1) of the NCAT Act. That is, the Tribunal has an unfettered discretion in respect of costs (subject to the matters we have discussed above in the context of House v King), even if "special circumstances" are established. 4. Third, the exercise of the costs discretion involves weighing whether the "special circumstances" are sufficient to depart from the general rule set out in s 60(1). The party seeking the costs order bears the onus of persuading the Tribunal that: 1. there are "special circumstances"; and 2. those "special circumstances" are sufficient to justify departure from the general rule: The Owners-Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 at [6]-[15]). 1. Fourth, each case must be individually assessed to see whether special circumstances exist which warrant an award of costs: eMove at [48]. 2. In this case, the Tribunal considered that the respondent's late withdrawal of their application, which occurred a few days before the hearing date, and found that it did not amount to "special circumstances" to warrant an order for costs. As noted above, in making an order for costs, the Tribunal exercised a discretion. 3. The principles in House v The King apply to an appeal from the exercise of such discretion as a question of law. The test is not whether we as the Appeal Panel would have made a decision different to that of the Tribunal below. Rather, it is necessary for the appellant to show that the Tribunal made an error of legal principle, that it took into account irrelevant matters, mistook the facts or failed to take into account or give sufficient weight to material matters, or made an order that was "so plainly unreasonable or unjust that some such error must have occurred": see Huang v Attapallil & Ors [2017] NSWCA 181 at [5]. Neither the NCAT Act nor the Rules contain a specific provision dealing with costs when an application is withdrawn. A range of Appeal Panel decisions have considered issues of costs when proceedings were withdrawn, including by way of example only: CPD Holdings; Solomons v Valley Motor Auctions [2017] NSWCATAP 31; Channell v Graham [2017] NSWCATAP 129; Azzi v Phan [2017] NSWCATAP 215; Arambewela v Castle Projects Pty Ltd [2018] NSWCATAP 14; Dehsabzi v Owners-Strata Plan No 83556 [2019] NSWCATAP 65; Shoal Bay Developments Pty Ltd v Community Association DP 270468 [2020] NSWCATAP 115; The Owners-Strata Plan No 70871 v Turek [2022] NSWCATAP 83. 4. As we have stated, each decision must be considered on its own facts and the main consideration must be section 60 of the CAT Act and whether, overall, there were "special circumstances". The Tribunal found that the withdrawal of the application at such a late stage was not a special circumstance. There was no finding that the application had no tenable basis or that the appellant was unnecessarily disadvantaged by the withdrawal at that stage. It is not the case that a withdrawal of any application, at any time, is of itself a special circumstance warranting an adverse costs order. To do so would import an intent that is not in s 60 of the NCAT Act and it would also operate as a disincentive for a party that may seek to withdraw its application, for whatever reason. As always, the proper approach is to leave the question of costs within the discretion of the Tribunal and unless there is a miscarriage of the exercise of that discretion of the type to constitute a House v The King error of law, the discretion will not be impugned on appeal. 5. We reject Grounds 1 and 2 of the appeal. No question of law has been identified and no error of law has been demonstrated. Ground 3 - no assessment was made of the merits of the case 1. Ground 3 essentially raises the same matter covered in Ground 1 (c). Ground 4 is contrary to the proposition put at Ground (1) (a) and (b). We are not in a position to assess the relative merits of the parties' cases before the Tribunal. However, the respondents contend that the Tribunal found that the appellant had breached s 103 of the SSMA by failing to obtain authorisation to incur legal costs in respect of the proceedings below. That finding is not challenged on this appeal (except to the extent that it is contended as being an irrelevant consideration in the exercise of the Tribunal's discretion on costs). 2. We also mention the difficulty in assessing whether the proceedings were untenable or unmeritorious and refer to the caution mentioned by McHugh J in Lai Qin in undertaking an "hypothetical trial". However, the respondents contend that in addition to the unchallenged finding of a breach of s 103 SSMA, on 5 August 2022, the Strata Manager (All Strata Services) informed the appellant that it had "failed in their duty to act, under Sections 106 and 160 of the [SSMA], being to repair and maintain common property and failure to ensure that the property of the Owners Corporation is insured". The Notice of Cancellation of the Flex Insurance Residential Strata Policy referred to the appellant's non-disclosure of major defects and the cancellation taking effect from 12 August 2022. An ultimatum was issued by the Strata Manager that "if legal compliance is not met" within 28 days then the Stata Management Agency Agreement will be terminated. 3. These are serious matters. It may be that this material is "new evidence" on the appeal and it was not before the Tribunal but we have allowed it as "new" in the sense that it post-dates the lodging of submissions before the Tribunal. In any event, it demonstrates the difficulty and the need for caution in undertaking a hypothetical exercise on merits in the absence of a fully contested hearing. On the face of those documents, it would not support the appellant's submission that the late withdrawal of the application was a capitulation or a surrender. 4. We are not in a position to question, and the Tribunal appears to have accepted, that a factor in the respondent's decision to withdraw their application was because the respondents were denied their request for an adjournment and an extension of time to respond to a proposed scope of work provided by the appellant's expert. The adjournment and the extension were sought on 16 June 2022. It was opposed by the appellant. On 24 June 2022 the hearing date of 11 July 2022 was confirmed. 5. One relevant factor not mentioned by the appellant (or the Tribunal) appears to be that a ground given for the withdrawal on 7 July 2022 was that one of the respondents was unemployed. The respondents submitted that the cost of having to independently pay for the costs of destructive investigations (presumably part of the proposed scope of work provided by the appellant's expert) that involved common property, prejudiced and financially disadvantaged them, particularly because of the "chronic unemployment status" of one of the respondents. 6. In our view, the Tribunal was correct in declining to embark on an assessment of the relative merits of the parties' positions. There was a sufficient basis for the Tribunal, in declining to do so, to find an absence of special circumstances warranting an order for costs due to the late withdrawal of the respondent's application. Ground 6 – failure to take into account matters relevant to the respondents being "self represented" 1. Ground 6 is a challenge to the Tribunal's "allowance' for the fact that the respondents were self represented. There is no error in having regard to that fact as another circumstance in the overall matrix of matters to be evaluated when considering whether special circumstances have been established. The challenge goes to the question of the "weight attached by the Tribunal to its finding that the Applicants were self represented". Since this raises a question of the weight attributed to a finding, simply affixing the words "erred in law" to the ground of appeal does not change the reality that this is a matter for which leave to appeal is required and has not been sought. It is not, as we discuss further below, a question of law. 2. In any event, in comparative terms, given the legal expenses sought by the appellant, and its claim for those costs, it is disingenuous to submit that the appellant was also self-represented in the same way that the respondents were self represented. The appellant and its lawyers chose to adopt a very active role as a "ghost writer lawyer" that we have referred to above and which underlies its claim for legal expenses. 3. This is of concern for reasons of accountability. A ghost writer lawyer is not directly accountable to the Tribunal for the work prepared by them or that firm. The description "ghost writer lawyer", as we have stated above, is the term used to describe such a practice in the United States, although we note that in a majority of States, that practice is illegal or banned by the relevant State professional bodies: see for example The practice of solicitor ghosting in NSW is perhaps not uncommon in jurisdictions where leave from a court or tribunal is to be obtained for a party to be legally represented and where the parties are usually expected to pay their own costs of proceedings irrespective of the outcome (save for a finding of "special circumstances"). 4. The appellant has acknowledged that it never sought legal representation that might be (and is usually) permitted under s 45 of the NCAT Act particularly as in this case where an Owners Corporation is a party in proceedings before the Tribunal. 5. Leave to represent the appellant was not sought until 5 August 2022 and then, it was only to provide submissions on costs (and only after J S Mueller & Co, Lawyers had provided the respondents' submissions on costs on 4 August 2022). Also, there is the unchallenged finding by the Tribunal that the appellant breached s 103 of the SSMA and it was not authorised to incur legal costs associated with the proceedings. 6. We are not apprised of all of the circumstances but it may be that if those expenses were not authorised by the respondents and its lawyers did not declare their role by going on the record, the respondents may have been unaware that the appellant was incurring any legal expenses during the course of the proceedings. The respondents' application was filed on 24 January 2022 and the first occasion that there is any mention of a solicitor acting on behalf of the respondents was an email dated 16 June 2022 to the Owners Corporation. Mr Baker's affidavit dated 8 November 2022 lodged in this appeal shows that all dealings with the respondents' lawyer were thereafter under his and Ms Stewart's names "for the Owner's Corporation" until the costs submission dated 5 August 2022 (after the withdrawal). 7. Therefore, having regard to all relevant circumstances, the failure to comply with s 103 SSMA could be a significant consideration. When combined with the undisclosed role of the ghost writing lawyer, these acquire an element of relevance in the exercise of the discretion to refuse the appellant its costs. The appellant was incurring legal costs when at all times it purported to act without the input of lawyers, it did not seek leave to be legally represented and appears to have actively sought to conceal that from the respondents and their lawyer even when the respondents' lawyer was in direct communication with the appellant. 8. In any event, there is no error of law articulated or established. There is authority to support the relevance of self representation as a consideration in the exercise of a discretion on the question of costs: eg Pillay v Ku-ring-Gai Council [2015] NSWCATAP 83; eMove Pty Ltd v Dickinson [2015] NSWCATAP 94; Durran t/as Canberra Sheds and Outdoor Storage v Bliss [2018] NSWCATAP 43. Ground 7 – taking into account s 103 breach - an irrelevant consideration 1. Ground 7 asserts that the Tribunal took into account an irrelevant consideration, namely the appellant's breach of s 103 SSMA that we have referred to above. The appellant has not challenged that finding as a ground of appeal. The only question is whether it was an irrelevant consideration and if it was, did it cause the discretion to miscarry in the sense referred to in House v The King? 2. We have discussed above how it may have been a relevant consideration. The appellant simply asserts that matter to have been irrelevant. Even if it was irrelevant, and we should not be taken to infer that it was, we cannot discern how it is contended that this finding caused the decision to miscarry having regard to the overall findings made by the Tribunal and raised by the appellant's grounds of appeal. Ground 8 – insufficient weight given to the Resolution authorising the appellant to engage experts for the proceedings 1. Ground 8 is the counter factual to Ground 7. Ground 8 suffers from the same problem that we have discussed above in relation to Ground 7, namely there is no attempt to engage with the question of how the discretion is said to have miscarried. If Ground 7 was an irrelevant consideration we cannot see how the Tribunal could be challenged for giving insufficient weight to the same Resolution passed by the appellant to authorise the engagement of experts. 2. Ground 8 is predicated on the proposition that the Tribunal was wrong to construe the resolution of the appellant as only pertaining to the engagement of experts and not "legal experts". That finding was not challenged. 3. Further, if as stated, Ground 8 raises a contention about insufficient weight being given to a relevant matter by the Tribunal, then it cannot raise a question of law and leave is required to raise this Ground. Leave was not sought. 4. In relation to Ground 8 generally, we are not aware of circumstances where lawyers acting in the capacity of ghost writing lawyers, or in any other professional context in adversarial proceedings, might be regarded as "experts" rather than lawyers or legal practitioners. In broad terms, the defining feature of an "expert" in curial or tribunal proceedings is that: 1. The expert provides (or is able to provide) evidence to the court/tribunal at a hearing and is available for cross examination, based on a written report that has previously disclosed to the other party; 2. The expert agrees to abide by a code of conduct (or similar) applicable to the court or tribunal in which they are providing their report and/or giving their evidence. 1. The most likely occasion a lawyer could come within the ambit of being an "expert" is where that lawyer is giving expert evidence to a court or tribunal, such as in relation to the meaning and operation of a foreign law. Otherwise, if a lawyer is purporting to be advising as an expert, such advice and related work could not then attract legal professional privilege and would require the usual disclosures to the court or tribunal referred to above. Further, the issuing of invoices by Bugden Allen Graham to the owners of Lot 2 (but not issued on behalf of or in the name of the Owner's Corporation), were rendered as "Professional Fees and Disbursement", in apparent reference to these proceedings. Those invoices also contained "notices" and references to provisions of the Legal Profession Uniform Law (NSW) No 16a. 2. We reject any submission that the appellant's lawyers were authorised by the appellant to act in these proceeding as a legal expert (or in any other professional capacity) or that the fees of Bugden Allen Graham were incurred on behalf of the appellant other than as legal practitioners. 3. In our view, these are relevant considerations in the context of whether the incurring of legal expenses for these proceedings was authorised by the appellant, and if not, whether such costs can be recoverable as costs under s 60 of the NCAT Act. Based on our findings above, we need not determine that issue now in this appeal, but we raise it of the consideration of others at a future time. 4. Further, if as stated, Ground 8 raises a contention about insufficient weight being given to a relevant matter by the Tribunal, then it cannot raise a question of law and leave is required to raise this Ground. Leave was not sought. Failure to establish any questions of law 1. We add for completeness that the appellant's six grounds of appeal offend the observations and findings made recently by Leeming JA (with whom Meagher JA and Griffiths AJA agreed) in Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [26]: 26. The Appeal Panel reproduced at [58] what has been said in this Court concerning the need to identify the questions of law which were a condition of its jurisdiction and the subject matter of the appeal, citing Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; 96 ATR 875 at [6] and [22]. The Appeal Panel said that it was "not enough to simply assert (as the appellant did), that the Tribunal erred in its construction and application of certain provisions of the [Act] without also identifying how that purportedly occurred". No submissions were made that that statement was wrong, or the numerous decisions of this Court to the same effect were wrong. However, it will be seen that formulation of the applicant's further appeal to this Court suffered from the same deficiency. 1. At [31]-[34] his Honour further stated, in terms that we respectfully adopt as pertinent to the six grounds of appeal raising a purported question of law and that raises analogous considerations under s 80(2) of the NCAT Act to which we have referred above: 31. This Court's "first duty" is to consider its jurisdiction: Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398 at 415; [1911] HCA 31. The applicant's appeal to this Court is a creature of statute. It is conferred by s 83 of the Civil and Administrative Tribunal Act. There is no appeal as of right, but rather it is necessary for the applicant to make out a case for leave. Further, and importantly for present purposes (and just as it was dispositive to the appeal to the Appeal Panel), the appeal in this Court is confined to being "[an] appeal on a question of law". Those constraints are elements of the limited grant of jurisdiction conferred by the statutes creating the rights of appeal. 32. As has been said on a large number of occasions, it is not sufficient merely to assert that the Tribunal erred in law in order to satisfy the limited conferral of jurisdiction. Authorities to that effect are collected in Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13], as well as in Ferella at [6] and [22] to which the Appeal Panel referred. More recently, it was said in Booth v Fourmeninapub Pty Ltd [2020] NSWCA 57 at [21] by me, with the agreement of Bell P and White JA, that "[a]n appellant cannot convert a challenge which is wholly or partly factual to one which is on a 'point of law' merely by including those words in the formulation of a ground". The proposed grounds of appeal in this Court do not suffer from that deficiency. However, they suffer from a different defect. Rather than identifying a question of law, in large measure they simply assert error. 33. The grounds were … 34. It may be seen immediately that the notice of appeal elaborated a large number of bases upon which, so it was said, the Appeal Panel had erred. It will also be seen that the notice of appeal fell short of squarely identifying a question of law. 1. The grounds of appeal allege various matters on which the exercise of the discretion is said to have miscarried as "errors of law". No attempt has been made to explain how that discretion miscarried in the manner required under the principles of House v The King to constitute an error of law and not just a decision made by the Tribunal that the appellant takes issue with and simply describe as an "error of law". This is most clearly shown in Grounds 6 and 8 that are predicated as "errors of law" but challenge the discretion by an alleged failure to afford sufficient "weight" to a matter. 2. As long as the Tribunal's decision was reasonably open for the Tribunal to make and its decision was the result of an orthodox and not a perverse or capricious process of reasoning, the discretion will not be impugned on appeal. 3. In our opinion, the Tribunal correctly had regard to the provisions of section 60 of the NCAT Act in its decision and in considering whether "special circumstances" applied under that section to decline an award of costs. Conclusion 1. In relation to the two grounds of appeal for which leave to appeal is required, the appellant has not established that the Tribunal's decision may have caused a substantial miscarriage of justice as required by cl 12(1) of Sch 4 of the NCAT Act or that even if it did, that the appeal raises any question of principle or general public importance to warrant the granting of leave to appeal. 2. The appellant has asserted but has failed to demonstrate any error on a question of law by the Tribunal in the exercise of its discretion on costs of the type raised by House v The King to warrant us reconsidering the Tribunal's decision. Orders 1. By consent, an order dispensing with a hearing as the Appeal Panel is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions and other documents or material lodged with or provided to the Appeal Panel. 2. Refuse leave to appeal. 3. Dismiss the appeal. ********** 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: 29 March 2023