Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Roberts v The Owners – Strata Plan No 4393 [2023] NSWCATAP 119 Hearing dates: 21 March 2023 Date of orders: 08 May 2023 Decision date: 08 May 2023 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member E Bishop SC, Senior Member Decision: 1. The time to appeal is extended up to and including 13 January 2023. 2. The appeal is dismissed. 3. If any party desires to make an application for costs: (a) that party is to so inform the other party within 7 days of the date of these reasons; (b) the applicant for costs is to lodge with the Appeal Panel and serve on the respondent to the costs application any written submissions of no more than three pages on or before 7 days from the date of these reasons; (c) the respondent to any costs application is to lodge with the Appeal Panel and serve on the applicant for costs any written submissions of no more than three pages on or before 14 days from the date of these reasons; (d) any reply submissions limited to two pages are to be lodged with the Appeal Panel and served on the other party within 21 days of the date of these reasons; (e) the parties are to indicate in their submissions whether they consent to an order dispensing with a hearing of the costs application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted. Catchwords: COSTS — application of s 60 of the Civil and Administrative Tribunal Act 2013 — appeal therefrom — general considerations relating to appeals from final decisions as to costs — no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 4(1), 36(3), 60(3)(a), 60(3)(b), 60(3)(f), 60(3)(g), 80(2)(b) Civil and Administrative Tribunal Rules 2014 (NSW), r 38 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Bruce v Knight (No.4) [2021] NSWCATAP 412 Collins v Urban [2014] NSWCATAP 17 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Fisk v. Gold [2021] NSWSC 1465 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kanjian Holdings No. 1 Pty Ltd v. Kanjian (No 4) [2021] NSWSC 1390 McInnes v Rheem Australia Pty Limited [2021] NSWCA 89 Moloney v Taylor [2016] NSWCA 199 Monument Building Group Pty Ltd v Kapila (No. 2) [2021] NSWCATAP 339 New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Re Minister for Immigration & Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Sadlo v Australian Retirement Holdings Pty Ltd [2020] NSWCATAP 169 Thompson v Chapman [2016] NSWCATAP 6 Texts Cited: Nil Category: Principal judgment Parties: Mei Lan Roberts (Appellant) The Owners - Strata Plan No 4393 (Respondent) Representation: Counsel M Swanson (Appellant) M Cobb-Clark (Respondent) Solicitors: Juris Cor Legal (Appellant) Thomas Martin Lawyers (Respondent) File Number(s): 2023/00013293 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 15 December 2022 Before: S A McDonald, Senior Member File Number(s): SC 22/08452 REASONS FOR DECISION 1. This appeal concerns the question of costs when parties have settled their dispute without any hearing on the merits but without settling the question of costs. Background 1. The appellant is a lot owner in the respondent strata plan. The strata plan has twelve unit holders. 2. The following recitation of facts is largely taken from the respondent's evidence as summarised in the Tribunal's decision. These facts were expressly referred to by the Tribunal (at [19]) and which the Tribunal said (at [39]) were largely supported by evidence the appellant gave on 7 June 2022 at the hearing of an interlocutory application in the proceedings. 3. In late 2020, the appellant wanted to renovate her apartment. The proposed renovations included removing structural walls in the kitchen and garage, installing a new bathroom, replacing wall and floor tiles and installing new recessed lighting (which required penetrations to the ceiling and consequent fire prevention work). 4. The appellant required the respondent's approval to carry out at least some of that work. Accordingly, the appellant submitted a resolution to a general meeting of the respondent for the passing of a proposed by-law which would have had the effect of approving the works. 5. The resolution to approve the by-law was considered at a general meeting of the respondent on 31 January 2022 but failed. 6. Notwithstanding the failure of the resolution the appellant commenced some of the renovation work on 18 February 2022. 7. That same day the respondent's strata manager contacted the appellant and told her that she could not carry out the works. 8. The appellant did not comply with that request and so on 24 February 2022 the respondent lodged two applications with the Tribunal: one for final relief (the "first application") and one for interim relief (the "interim application"). 9. The first application sought orders that the appellant perform work or take other steps to repair damage to the common property caused by her unauthorised works, pay the respondent for the cost of repairs of the damage to the common property caused by the unauthorised works and any associated costs including any insurance and/or legal costs, and sought costs of the proceedings. No dollar figure for those repairs or costs was specified in the first application. 10. On 25 February 2022, and in relation to the interim application, the respondent obtained an ex parte stop work order from the Tribunal against the appellant. 11. On 4 March 2022, an interim stop work order was made for a period of three months. 12. On 3 June 2022, the respondent lodged an amended application for final orders (the "second application"). In the amended application the respondent sought orders: 1. that the appellant pay to the respondent $85,000 for the cost of repairs of damage and the cost of performing works to restore the common property; 2. permitting the respondent to access the appellant's lot to carry out work to restore the common property; 3. that the appellant pay to the respondent a civil penalty; 4. interest; and 5. costs of the proceedings. 1. On 7 June 2022, the respondent sought, and the Tribunal granted, an extension of the stop work order made on 4 March. The order was extended until the conclusion of the proceedings or further order of the Tribunal. That stop work order remained in place until the proceedings were settled on 30 September 2022. 2. On 16 June 2022, the respondent lodged a further amended application for final orders (the "third application"). The two substantive changes made were to increase the amount sought for repairs (from $85,000 to $120,000) and the deletion of the order sought for the payment of a civil penalty. 3. The matter was listed for hearing on 1 July 2022 but was not concluded that day. It was listed for further hearing on 30 September 2022. 4. On 30 September 2022, the respondent lodged a further amended application for final orders (the "fourth application"). It is useful to set out in full the amended orders sought (except for the annexure referred to therein). The fourth application sought: "1. An order pursuant to Section 132(1)(b) of the Strata Schemes Management Act 2015 (NSW) (SSM Act), that the Respondent pay to the Applicant the amount of $7,696.70 (incl GST) for the cost of rectifying non-compliant works set out in the Project Guides Pty Ltd Report dated 9 August 2022, contained at pages 19 - 21 of the Affidavit of John Weihen dated 8 September 2022. 2. An order pursuant to s 122(1)(c) of the SSM Act permitting the Applicant and its agents, employees and contractors to access Lot 12 in Strata Plan No. 4393 at a reasonable time on 48 hours written notice in order to carry out the works that are the subject of Order 1. 3. An order pursuant to Sections 232 and 241 of the SSM Act that within fourteen (14) days the Respondent at her own expense obtain a complying development certificate from North Sydney Council concerning the garage steel beam installed and/or altered within Lot 12 in Strata Plan No. 4393. a. The Tribunal varies the stop work order in these proceedings to the extent necessary to permit North Sydney Council to inspect the garage steel beam. 4. An order pursuant to section 149 of the Strata Schemes Management Act 2015 making a common property rights by-law in the form annexed to these orders as "A". 5. In the alternative to order 4, an order pursuant to s 232 of the Strata Schemes Management Act 2015 that on or before 29 October 2022, the Respondent, at her cost, is to present the Owners Corporation a common property rights by-law in relation to all work carried out by the Respondent or at the Respondent's direction to Lot 12 in Strata Plan No. 4393, including (but not limited to): a. independent evidence that all unauthorised works have been done with due care and skill and in accordance with the relevant Australian Standards: and b. evidence that the works do not affect the structural stability of the building. 6. The Applicant is not to unreasonably deny the making of the by law in Order 5. 7. In the event that Order 5 is not complied with, an order pursuant to Section 132(1)(b) of the SSM Act, that the Respondent pay to the Applicant the amount of $120,000 for the cost of repairs of damage and the cost of performing works to restore the common property in and around Lot 12 in Strata Plan No. 4393 to its condition prior to 31 January 2022. 8. Interest pursuant to r 39 of the Civil and Administrative Tribunal Rules 2014 (Tribunal Rules). 9. The Respondent pay the Applicant's costs pursuant to: a. s 132(1)(b) of the SSM Act; b. r 38(2) of the Tribunal Rules; or c. s 60 of the Tribunal Act. 10. Such further order as the Tribunal sees fit. 11. Liberty to apply." 1. On 30 September 2022 the parties settled their dispute except as to costs. The terms of the settlement are not relevant. 2. The parties agreed to the question of costs being decided by the Tribunal on the papers by reference to the evidence previously served, but without any cross-examination and without any limitation on the submissions that could be made on that evidence. [1] The Tribunal's Decision 1. After a brief introduction, a brief general description of the Tribunal's costs regime and the parties' submissions, the Tribunal then turned to its decision on costs and the reasons for that decision. 2. The Tribunal said the starting point was the decision in Re Minister for Immigration & Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 which the Tribunal said was authority for the proposition that parties acting reasonably should expect that the proper exercise of the costs discretion where proceedings have been settled without a hearing on the merits will usually mean that the court (or tribunal) will make no order as to the cost of the proceedings. 3. The Tribunal observed that there was no hearing on the merits in the instant case but that the settlement occurred only after two hearing days in the Tribunal (being 1 July and 30 September 2022), several interim applications by the respondent successfully seeking and obtaining stop-work orders and significant affidavit evidence attesting: "37(3). … at least on a prima facie basis to the appellant's wilful and unlawful conduct in breaching those stop-work orders, and a failure generally to comply with Tribunal directions." 1. The Tribunal turned to the transcript of 7 June 2022 when an extension of the stop work order was being considered and during which the appellant gave evidence. The Tribunal highlighted various aspects of the appellant's evidence given on that occasion and said it was concerned at some of her answers but did not identify the particular answers or the particular concerns. The Tribunal said (with "OC" being a reference to the respondent): "39. The 14 pages of transcript have been reviewed carefully by the Tribunal which considers that the oral evidence of the (appellant) herself, via an interpreter, supports much of the OC's factual submissions made in paragraph 19 above and suggests that the (appellant): (1) did not comply with Tribunal directions made on 4 March 2022 (p.7 lines 12-27); (2) did not comply, and did not apparently propose to comply, with the Tribunal's stop-work orders or cease carrying out work to her unit (p.8, lines 6-36); (3) made allegations of racist discrimination against the OC and/or the Tribunal when informed that she could not carry out any work to her unit while the stop-work order was in place (p.8, lines 20-36) and (p. 12, lines 1-4); (4) said that she would rather accept the consequences of contempt of the Tribunal stop-work orders than change her building schedule in the unit (p.9, lines 1-6); (5) refused to allow the OC's expert to inspect the work undertaken in her unit (p. 111, lines 39-44 and p. 12, lines 1-4); and (6) had knowledge of a proposed hearing date in the Tribunal on 1 July 2022 by 7 June 2022 but informed the Tribunal that she would be overseas from 4 June 2022 to the end of July 2022, that she would be busy overseas and without her computer and 'won't have time' for the hearing (p.9, lines 21-33)." 1. The Tribunal said that little or no evidence, expert reports or documents were filed and served in the appellant's defence of the substantive proceedings prior to approximately 29 June 2022 (one clear working day before the first day of hearing) and in breach of the Tribunal's interlocutory directions to prepare the matter for hearing. 2. The Tribunal said that the fact that there was no hearing on the merits was important. 3. The Tribunal then said: "42 … However, a probable interpretation of what occurred in these proceedings is that the (appellant): (1) was unsuccessful in obtaining a special resolution for the major renovation work that she was seeking to undertake to her unit; (2) ignored the consequences of that and commenced work irrespective and despite stop-work orders obtained by the OC; (3) continued the works unlawfully not withstanding a range of attempts by the OC to prevent this including further applications for interim stop-work orders; (4) undertook significant renovation works, some of which would, in the normal course, require a common property by-law; (5) ultimately and unlawfully accomplished completion of the works, or the greater part of the works, so that settlement discussions undertaken with the OC in September 2022 were no longer based around restoring the property to its original state but instead were based around completing the works with appropriate certifications and approvals simply to avoid more and greater disruptions, cost and time to the OC; (6) first gave the OC sufficient information about the competence and certification of the works immediately prior to the second hearing date on 30 September 2022; and (7) earlier communication of these matters, which the OC was entitled to know, would have significantly reduced the costs of both proceedings in the Tribunal." 1. We take the expression "probable interpretation of what occurred" to mean that the seven sub-paragraphs of [42] (quoted above) amounted to findings of fact made by the Tribunal. That conclusion is fortified by the Tribunal's reference to the "balance of probabilities" in the immediately succeeding paragraph in the Tribunal's reasons wherein the Tribunal said: "43. There is sufficient material in the affidavits filed, 2 hearing days before the Tribunal, transcripts of interim proceedings and of the OC's written submissions in respect of this costs application to accept, on the balance of probabilities, that this is probably what occurred despite the (appellant's) protests to the contrary." 1. One of the affidavits filed and to which the Tribunal was presumably referring was an affidavit of the appellant affirmed on 29 June 2022 and to which we shall return later in these reasons. 2. The Tribunal then said that r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the "Rules") applied. That rule provides that the requirement to establish special circumstances under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act") as a pre-condition to an award of costs did not apply to proceedings in the Consumer and Commercial Division of the Tribunal where (putting other presently irrelevant matters to one side) the amount claimed or in dispute in the proceedings was more than $30,000. The Tribunal said that it found that the amount claimed or in dispute in the proceedings was more than $30,000, impliedly because the amounts claimed in Order 1 of the second and third applications was $85,000 and $120,000 respectively and that in respect of the fourth application the Tribunal's view that the fourth application: "44. … simply reflected a redistribution of the apportionment between a work order and money order reflected in the work which was apparently unlawfully accomplished by the (appellant) between March and September 2022." 1. We divert briefly to say something about how we are to read the Tribunal's reasons, r 38 and the Tribunal's decision based on r 38. 2. The holdings in New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 per Bell P (as his Honour then was), with whom Ward JA (as her Honour then was) at [77] require us to read the Tribunal's reasons fairly and as a whole. We are not to read passages in the Tribunal's reasons in isolation from others to which they may be related, nor with a fine tooth-comb attuned to identifying error. We are also required to apply a degree of tolerance for looseness in the Tribunal's language, unhappy phrasing or verbal slips. 3. Reading the Tribunal's reasons as required, we infer that the Tribunal considered that at least the second and third applications had claimed amounts of money greater than $30,000 (being $85,000 and $120,000) respectively, and the reduction of those figures to the amount of $7,696.70 in prayer 1 of the fourth application was because of the said redistribution. 4. It is reasonably clear that the Tribunal decided that, since r 38 applied, the appellant should pay the respondent's costs. 5. After a hearing on the merits costs ordinarily follow the event (or success) absent some disentitling conduct by the successful party or other disqualifying feature, but that depends on there being an "event" (or "success" in the proceedings): see, for example, Thompson v Chapman [2016] NSWCATAP 6 at [69]-[72]. In this case, however, there was no "event" following a hearing on the merits and, assuming r 38 applied, the considerations set out in Lai Qin would apply. 6. However, other than what we have summarised above, no more was said about the consequences of the application of r 38 by the Tribunal despite the fact that the mere application of r 38 does not mean that costs will be awarded. That is, simply because r 38 applied did not automatically mean that an order for costs would follow. If r 38 is found to apply, the Tribunal then must decide (exercise its discretion) whether to award costs to one party or another or refuse to award costs. 7. But the Tribunal said nothing about the exercise of the costs discretion which arose if r 38 applied. Either this was an error of law in that the Tribunal failed to exercise its jurisdiction (because it did not decide the point) or it failed to give reasons. Either way, the Tribunal fell into error. Neither of those grounds was raised by the appellant but because the Tribunal decided that the appellant should pay the respondent's costs on an alternative basis, that is if r 38 did not apply, and as we have decided that the appeal in relation to that basis should be dismissed, we need say nothing more about the Tribunal's decision based on r 38 other than where necessary to provide context to the remaining issues in the appeal. 8. Returning to the Tribunal's reasons, the Tribunal then held that if it were incorrect about the application of r 38, it found that special circumstances under s 60 did exist. The Tribunal said: "46. If this is incorrect, the Tribunal finds that the OC has established special circumstances from the (appellant's) wilful conduct deduced from the transcript of proceedings of 7 June 2022 in paragraph 39 above. The Tribunal finds this conduct satisfies s 60(3)(a), (b) and (f) of the Act." 1. Section 60(3) says: (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. Thereafter, and we infer after the Tribunal had decided that the appellant should pay the respondent's costs of the proceedings, the Tribunal turned to the question whether costs should be payable on the indemnity basis. 2. Citing Bruce v Knight (No 4) [2021] NSWCATAP 412, Fisk v Gold [2021] NSWSC 1465 at [26] and Kanjian Holdings No. 1 Pty Ltd v. Kanjian (No.4) [2021] NSWSC 1390 at [58] the Tribunal held that a party's wilful misconduct in proceedings was a "sufficient or unusual feature" which would justify an award of indemnity costs. 3. The Tribunal said that the fact there had been no hearing on the merits and no cross-examination of the appellant (which may have illuminated more precisely the actions taken by the appellant and the reasons for them) militated against an indemnity costs order, but the Tribunal reasoned such an order was justified by what was revealed in the transcript of the appellant's evidence given on 7 June 2022, the appellant's failure to comply with the Tribunal's directions, the appellant's rejection of, and apparent deliberate non-compliance with, the Tribunal's stop-work orders, and the appellant's contumelious disregard for the workings of the Tribunal, including possible contempt of its orders. 4. The Tribunal then made the following relevant finding at [50]: "50. The Tribunal considers that these matters considered objectively portray the (appellant's) relevant conduct as wilful and not inadvertent or innocent, and the Tribunal finds accordingly." 1. The Tribunal then said: "51. For these reasons, the Tribunal orders the (appellant) to pay the (respondent's) costs of the proceedings, including the hearing days on 1 July 2022 and 30 September 2022, on an indemnity basis. 52. It follows that the (appellant's) claim for an order for her costs of the costs application against the OC must be dismissed." 1. Therefore, as we read the Tribunal's reasons, the Tribunal found that the appellant had conducted the proceedings in a way that unnecessarily disadvantaged the respondent [s 60(3)(a)], she had been responsible for prolonging unreasonably the time taken to complete the proceedings [s 60(3)(b)] and had failed to comply with the duty imposed by s 36(3) of the NCAT Act, namely to co-operate with the Tribunal to give effect to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal [s 60(3)(f)]. 2. Those conclusions were reached by the Tribunal having found the facts we have identified above (at [22], [23], [26] and [42]) and recorded in the Tribunal's reasons at [37(3)], [39], [42] and [50]. Extension of Time to Appeal 1. The appeal was filed very slightly late and so an extension of time is required. The delay has been satisfactorily explained and the respondent quite properly and fairly does not oppose the extension of time. Accordingly, time to appeal will be extended. Grounds of Appeal 1. The appellant challenged Order 2 made by the Tribunal, namely that the appellant was ordered to pay the respondent's costs of the proceedings, and that those costs were to be assessed on the indemnity basis. 2. The appellant appealed on the following four grounds: 1. The decision below did not address or grapple with key parts of the appellant's costs argument. 2. The decision below was unreasonable, as to the decision to award costs generally and further on the indemnity basis, and it was a decision not able to be reasonably reached on the facts. 3. The decision below was based on a finding that the appellant had engaged in wilful misconduct which affected the whole of the proceedings when there was no basis for that finding, whether as to fact of her engaging in wilful misconduct or the effect of such conduct on the whole of the proceedings. 4. The decision below was wrong in law in its application of r 38 of the Rules. 1. Ground 4 may be ignored for the reasons we gave at [36] above. General Principles 1. This is an appeal from final orders (as distinct from interlocutory orders) as to costs. 2. This means that the costs decision appealed from is an ancillary decision of the Tribunal: see the definition of "ancillary decision" in s 4(1) of the NCAT Act. Therefore, the appellant has a right to appeal that ancillary decision on any question of law under s 80(2)(b) of the NCAT Act but must seek leave to appeal on any other ground. 3. This being an appeal from a decision made in the Consumer and Commercial Division of the Tribunal, leave to appeal may only be granted (per Schedule 4 cl 4 of the NCAT Act) if the Appeal Panel is satisfied that the appellant may have suffered a substantial miscarriage of justice because— 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. There is a further hurdle to overcome in relation to the granting of leave to appeal. In Collins v Urban [2014] NSWCATAP 17 at [83]-[84] it was held that the general principles to apply to an application for leave to appeal are that: 1. the appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact; 2. ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; or 2. questions of public importance or matters of administration or policy which might have general application; or 3. 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. 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. 1. Costs decisions fall into the category of discretionary decisions and therefore the appellant must establish an error of the type described in House v The King (1936) 55 CLR 499; [1936] HCA 40, namely that the Tribunal: 1. made an error of legal principle; 2. made a material error of fact; 3. took into account some irrelevant matter; 4. failed to take into account, or gave insufficient weight to, some relevant matter; or 5. arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning. 1. Despite those principles the appellant did not identify with any precision which House v The King error she was alleging in her grounds of appeal, her written submissions (drafted by different counsel to counsel who appeared for the appellant on the appeal) nor in her oral submissions, and at times relied on alleged errors of law which are not applicable in costs appeals. Be that as it may, we have addressed the issues raised by the appellant as best we understand them against the that background but in terms of House v The King error. 2. In addition, the "constrained" or "deferential" standard of appellate review applies in an appeal of this nature: McInnes v Rheem Australia Pty Limited [2021] NSWCA 89 per Gleeson JA, with whom Bell P (as his Honour then was) and Payne JA agreed, at [21]; Sadlo v Australian Retirement Holdings Pty Ltd [2020] NSWCATAP 169 at [41]-[43]. 3. That means that it is not enough that an Appeal Panel might conclude that it would have exercised the discretion differently if the discretion had been conferred on it in the first instance because (adopting the language of the High Court in Norbis v Norbis (1986) 161 CLR 513 at 518; [1986] HCA 17) the question involved (being costs) lends itself to differences of opinion which, within a given range, are legitimate and reasonable answers to the question posed. 4. Further still, because costs decisions fall within the category of matters of practice and procedure there is the "added restraint" and "particular caution" which an Appeal Panel should exercise in reviewing such a decision: McInnes at [22]. 5. In the Consumer and Commercial Division of the Tribunal costs are first governed by s 60 of the NCAT Act and r 38. Rule 38 may displace s 60 in certain circumstances and, where that occurs, the jurisprudence of the Tribunal is that, as we have mentioned earlier, ordinarily costs should be awarded to the successful party unless there be some disentitling conduct by that party or other factor justifying departure from that usual approach. 6. Here, however, there was no "success" in the relevant sense because there was no adjudicated outcome. The Tribunal's costs decision followed the settlement of proceedings rather than following a decision on the merits. 7. In such circumstances the general position in courts not governed by s 60 of the NCAT Act or similarly worded provision is that the parties bear their own costs. 8. In Lai Qin McHugh J set out the principles to apply in jurisdictions where the power to order costs is a discretionary power ordinarily exercised after a hearing on the merits. His Honour said that the general rule is that the successful party is entitled to his or her costs, where success in the action or on particular issues is the fact that usually controls the exercise of the discretion. His Honour said at 624 (footnotes omitted): "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." 1. In the last sentence of that quote and at 625 his Honour turned to the position where there was a settlement. His Honour said that if it appeared that both parties had 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. 2. However, there are exceptions. McHugh J turned to the exceptions at 624-5: "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 extracurial 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. … But such cases are likely to be rare." 1. It should immediately be noted that the Tribunal is subject to a different costs regime (at least in some respects) than that which applies in the courts to which McHugh J was referring. The Tribunal is a creature of statute and must abide by the terms of statutes which govern it. 2. In this case the Tribunal is governed by the terms of s 60 of the NCAT Act and McHugh J's considerations must give way to s 60 where they conflict with s 60 or where s 60 imports additional considerations or principles. In that sense we disagree with the Tribunal's statement at [36] that the starting point in a case such as this was McHugh J's judgment in Lai Qin. The starting point is s 60. 3. Section 60 is to be contrasted with provisions such as r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") which says: Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs. 1. The general position in the Tribunal regarding the application of s 60 was summarised by the Appeal Panel in Monument Building Group Pty Ltd v Kapila (No 2) [2021] NSWCATAP 339. The Appeal Panel said: "8. Special circumstances are circumstances that are out of the ordinary, but need not be those which are exceptional or extraordinary: Edwards v Commissioner for Fair Trading, Department of Customer Service (Costs) [2019] NSWCATAP 249 at [9]; Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]; Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222 at [8]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32]. 9. 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. The exercise of the discretion requires the Appeal Panel "to weigh whether those circumstances are sufficient to amount to 'special' circumstances that justify departing from the general rule that each party bear their own costs": BPU v New South Wales Trustee and Guardian (Costs) [2016] NSWCATAP 87at [9]. 1. The real point of distinction between the usual position in courts governed by provisions similar to UCPR 42.1 and the application of s 60 in the Tribunal is that the differing treatment given to the "event" and the factors listed in s 60(3). In the courts to which McHugh J was referring, and as his Honour said, the "event" is the fact that usually controls the exercise of the discretion. 2. However, in the Tribunal, and whilst the "event" can be taken into account under s 60(3)(g), the facts which control the exercise of the discretion are the presence or absence of special circumstances, the weight to be given to those special circumstances and whether those special circumstances are sufficient to justify departing from the general rule that each party bear their own costs. 3. That is not to say that considerations such as those set out in Lai Qin may not be relevant. Our point simply is that the starting point is s 60, and considerations and principles from other jurisdictions with different cost regimes must follow after and be consistent with s 60 in order to be applied. 4. Turning to the Tribunal's decision to award indemnity costs, it will be recalled that the Tribunal found that the appellant had engaged in misconduct, and this misconduct was a "sufficient or unusual feature" which justified an award of indemnity costs. That phase comes from (amongst the cases cited by the Tribunal at [47]) Fisk at [26] where Ward CJ in Eq (as her Honour then was) said: "As to a claim for indemnity costs, again, the discretion to award indemnity costs must be exercised judicially (see Mead v Watson (2005) 23 ACLC 718; [2005] NSWCA 133 at [8]) and with caution (see Leichhardt Municipal Council v Green [2004] NSWCA 341 at [47]; Ng v Chong [2005] NSWSC 385 at [13]). There is no fixed rule or rationale as to when an indemnity order might be made, except that it requires a "sufficient or unusual feature" (Harrison v Schipp [2001] NSWCA 13 at [139] referring to Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801 at 232-234). Such an order may be appropriate where a party wantonly or recklessly causes the other party to incur costs. It is recognised that this will often be the case where the party liable is guilty of some "relevant delinquency" (see Oshlack at [44] per Gaudron and Gummow JJ). 1. The Appeal Panel in Bruce (see [40] above) cited Henry J's decision in Kanjian No 4 and particular at [58] wherein her Honour said: "Indemnity costs should only be ordered where the party's conduct is "plainly unreasonable", such as where there is some "relevant delinquency" on their part: James v Douglas [2016] NSWCA 178 at [63]; Ballard v Brookfield [2013] NSWCA 18 at [7]–[9]; Sydney City Council v Geftlick [2006] NSWCA 280 at [90]; Oshlack at [44] (Gaudron and Gummow JJ). The circumstances that might give rise to an indemnity costs order include the following: where a party, properly advised, should have known they had no chance of success; where unfounded allegations of fraud or improper conduct are made, such as where they have been made knowing them to be false; the undue prolongation of proceedings by groundless contentions; where there is particular evidence of misconduct that causes loss of time to the court or other parties; the commencement of proceedings for some ulterior motive; and the unreasonable rejection of an offer of compromise: Fountain Selected Meats (Sales) Pty Limited v International Produce Merchants Pty Limited (1988) 81 ALR 397 at 401; [1988] FCA 364; Liverpool v Estephan at [95]; Colgate-Palmolive v Cussons at 233–4. 1. In the passage from Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [44] cited in the above two quotes Gaudron and Gummow JJ said (footnotes omitted): "It may be true in a general sense that costs orders are not made to punish an unsuccessful party. However, in the particular circumstance of a case involving some relevant delinquency on the part of the unsuccessful party, an order is made not for party and party costs but for costs on a 'solicitor and client' basis or on an indemnity basis. The result is more fully or adequately to compensate the successful party to the disadvantage of what otherwise would have been the position of the unsuccessful party in the absence of such delinquency on its part." Ground 1 1. In ground 1 of its appeal the appellant contended that the Tribunal did not address key parts of her claim. What is meant by that in terms of identifying a question of law, as we understand it, is that the Tribunal did not respond to a substantial, clearly articulated argument relying upon established facts and this was either a denial of natural justice or a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [24]. We take this to be a claim that the Tribunal fell into the fourth House v The King error, namely that the Tribunal failed to take into account, or gave insufficient weight to, some relevant matters being the arguments and facts identified. 2. In such a (Dranichnikov) case the concern of the law is to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] per Gleeson CJ. That is, if no practical injustice can be demonstrated – if the result would have been no different – the appellant will not succeed. 3. In her written submissions dated 7 March 2023 the appellant submitted that, in the way identified above, the Tribunal did not "exercise its costs discretion according to law" picking up the first House v The King error identified at [54] above. 4. The arguments allegedly not considered by the Tribunal were particularised in the grounds of appeal as follows: "2 The decision below did not address or grapple with key parts of the appellant's costs argument. 2.1. The relief the respondent had sought in the proceedings up until the eve of the final hearing could not be obtained, or in the alternative could not be readily obtained. 2.2 The settlement of the proceedings at time of the final hearing occurred strictly on a without-admissions basis as to the respondent's professed right to obtain the relief it had sought. 2.3 The settlement meant there was no event by which to assess costs, but that did not preclude the tribunal from considering the serious difficulty in the appellant's claim for relief and determining if that was a factor in entitling the respondent to costs or disentitling it from costs. 2.4 The tribunal acknowledged the appellant's argument on this point in the decision at [29](2), but it did not then address it. 2.5 If the tribunal addressed it in the decision at paragraph 42(5), which is not admitted, the tribunal wrongly assumed there (or found, without evidence) that settlement discussions were based around the appellant's formal completion of the work, rather than a unilateral decision by the respondent not to pursue a reinstatement of the residence to its original condition." 1. We do not accept this ground. 2. In truth, what the appellant submits was not an argument or submission based on established facts, but rather a series of alleged facts which the appellant submitted ought to have been taken into consideration by the Tribunal. To that extent the submission was misconceived because it fails to address the reasons the Tribunal gave for finding special circumstances and the way s 60 operates. 3. Section 60 operates on the basis that the starting position [s 60(1)] is that each party bears its own costs (whatever the outcome of the proceedings). Section 60(2) then provides that the Tribunal may award costs only if satisfied that there are special circumstances warranting an award of costs. Section 60(3) then says that in determining whether there are special circumstances warranting an award of costs the Tribunal may have regard to the matters set out thereafter. 4. Thus, the question was whether special circumstances existed, and were they sufficient to warrant an order for costs. The matters raised by the appellant and quoted at [78] above might have been relevant in a court subject to, for example, UCPR 42.1, but they weren't relevant to the Tribunal where s 60 applied and the special circumstances which the Tribunal found existed. 5. The Tribunal held that special circumstances did exist and it identified them. Those were: that the appellant had conducted the proceedings in a way that unnecessarily disadvantaged the respondent [s 60(3)(a)]; she had been responsible for prolonging unreasonably the time taken to complete the proceedings [s 60(3)(b)]; had failed to comply with the duty imposed by s 36(3) of the NCAT Act (to co-operate with the Tribunal to give effect to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings); and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal [s 60(3)(f)]. 6. The decision of the Tribunal was that it was those circumstances which were out of the ordinary and warranted departing from the application of s 60(1). 7. It could further be said that Particulars 2.1 and 2.2 (at [78] above) are irrelevant because even in the Tribunal it would not have been appropriate to in effect decide the case, or part of it, in order to decide the costs question (per Lai Qin). Particular 2.3 is irrelevant because the presence or absence of any "event" was irrelevant, and the Tribunal did not decide otherwise. Particulars 2.4 and 2.5 are irrelevant because they are simply submissions to the effect that the earlier matters were not addressed. Ground 2 1. In ground 2 of its appeal the appellant contended that the decision below was unreasonable, as to the decision to award costs generally and further on the indemnity basis, and it was a decision not able to be reasonably reached on the facts. 2. The particulars of the ground were identified by the appellant as follows: "3.1 The tribunal could not use the (unrepresented) appellant's non-compliance with its interlocutory injunction (or 'stop work order') as a basis for ordering general costs of the proceedings, as distinct from costs of the injunction. 3.2 The general costs of the proceedings concerned issues reaching beyond the existence of the injunction and included the respondent's entitlement to the injunction and to the relief it sought on a final basis. 3.3 The proceedings settled before a final determination of the issues therein arising, and the tribunal's assessment of 'what occurred' outside of the proceedings (at [42] - [43], all of which is not admitted) is not relevant to the positions taken by the parties within the proceedings (which was not addressed, other than in [39])." 1. This seems to have been a contention of legal unreasonableness, and how this ground attracted House v The King principles was not made expressly apparent in the appellant's written or oral submissions. Further still, the appellant's written submissions addressed a different error, namely that the Tribunal had made material errors of fact in that the transcript of 7 June 2022 did not support the findings the Tribunal made. 2. We shall deal with the particularised matters first before turning to the matters identified in the written submissions. 3. Particular 3.1 was not developed in written or oral submissions, but in any event it is wrong. Section 60 expressly includes such conduct insofar as such conduct unnecessarily disadvantages another party to the proceedings, unreasonably prolongs the time taken to complete the proceedings, amounts to a refusal or failure by the appellant to comply with the duty imposed by s 36(3) of the NCAT Act or was something the Tribunal otherwise considered relevant. 4. Section 60 does not contain any words of limitation such that any such conduct may only be considered in terms of costs of the stop work order. Further, the non-compliance with the stop work order was but one fact of many other facts which led the Tribunal to the conclusion it did. That non-compliance was a relevant consideration (per House v The King) and was not an irrelevant consideration. 5. Particular 3.2 was a submission and not a particular of a ground of appeal. 6. Particular 3.3 was wrong. What happens outside proceedings frequently (and in this case did) directly affect what happened within the proceedings. For example, non-compliance with stop work orders (outside the proceedings) led to the need to re-list the matter before the Tribunal. What the appellant did in continuing the renovation work then influenced the relief ultimately sought and the evidence to be adduced. 7. In the appellant's written submissions the appellant summarised the Tribunal's reasons given at [39] and [42] of the decision, and submitted that: "[10] It is not possible to find in the 7 June 2022 transcript what the senior member says is there. It is also not possible to find in his decision any appraisal of (the appellant's) contentions (1) that the respondent had a serious problem, with the principal relief that it had sought, and (2) that misconduct relating to orders and tribunal directions (particularly on for March 2022, the only past date under discussion on 7 June 2022) were not a basis for general costs of the proceedings. These points have been clearly articulated (see further ZXJ v ZXK [2022] NSWCATAP 371 at [48])." 1. The second sentence has been dealt with earlier, but the first sentence was developed by the appellant at [11] of her written submissions to the effect that on 7 June 2022 the appellant did not (contrary to the Tribunal's finding) indicate an intended non-compliance with the stop work order, but rather she was communicating that she had inspections booked and did not propose to cancel those inspections. 2. We disagree. The relevant part of the transcript (T 7-8) said: "Senior Member: Alright. So, no more work until the final hearing? Interpreter: In regards to stop all the work. I could not accept this offer. Senior Member: It's not an offer. It's a ruling. Interpreter: I think the counsel (sic) has made appointments with the CBA and also our engineer (inaudible 00:37:35) and it's very hard to get them together. Also, they had (inaudible 00:37:41) for one year. So yes, I cannot accept. Senior Member: Ms. Roberts needs to understand that she cannot carry out any work while the tribunal is telling her that she can't. Interpreter: I do not answer this because no matter what it would take, I cannot (inaudible 00:38:35). Senior Member: Mr. Smith, do you wish to say anything? Mr. Smith: (inaudible 00:38:54) my permission is that we're willing to indicate that your (inaudible 00:38:57) is appropriate. Senior Member: Thank you. Can you interpret that, please? I urge Ms. Roberts to get some advice. Interpreter: Yeah, no matter what it takes, I think this being racist discrimination Senior Member: I can assure you it is not discrimination. The (inaudible 00:40:11) management act requires that you not do any work on the common property unless you have consent of the owner's corporation. That applies to everybody. Interpreter: So, on the 30th of January, according to the tribunal and they said you cannot... So, I need to write down one of the board and according to the meeting of 30th January, I do not do that to... (inaudible 00:42:14) permission to do that, so I haven't done anything about it, until now. Senior Member: This are the things that the tribunal will consider all of the things at the hearing, but until when, no work is to be carried out. Mr. Hindi: I definitely cannot accept this because there's already arranged on Thursday, with the counsel and will go to (inaudible 00:43:43). Senior Member: Sorry, it's arranged to do what on Thursday? Mr. Hindi: (inaudible 00:43:55). Senior Member: The tribunal is telling you, you cannot do that on Thursday. Interpreter: No. I cannot accept it. Senior Member: You need to seek some legal advice very urgently. Interpreter: Yeah. I have contacted my lawyer, but I cannot change my schedule. Senior Member: Well, I can't give her advice, but if she is in contempt of this order, there are consequences which will follow. Interpreter: Yes, I will take the consequences." 1. In our view there was no material error of fact. The appellant herself (through her interpreter) said she could not accept the "offer" to "stop all work". Sometimes there are mistranslations but that answer, in our view, extended to matters other than inspections. That conclusion is supported by the fact that the Tribunal told her on four occasions in the quoted portion of the transcript above that she could not do any "work". This was interpreted four times and it seems most unlikely that the appellant could have been under any misapprehension as to what that meant. In addition, whilst appointments with the CBA and an engineer were mentioned, and possibly council (recorded as "counsel"), there was no use of the word "inspections" by the appellant in her answers in that portion of the transcript. That is to be contrasted with other parts of the transcript where the appellant did use the word "inspections". 2. It is true, as the appellant submitted in writing, that the appellant did say there had been inspections conducted "at least 10 times" (T 12), but rather than supporting the submission it seems to us that the use of the word "inspections" in that part of the transcript indicates that inspections only were not in the appellants mind when both she and the Tribunal used the word "work" (as in "no more work", "all work" etc) at T 7-8. 3. We also note the appellant had some facility with simple English as the following exchange took place at the commencement of the application that day without the benefit of an interpreter: "Senior Member: It's Senior Member Ross from NCAT for the hearing. Just stay with me see if I can join everyone together. Ms. Roberts: Okay." 1. The mentions of "work" and inspections" in the transcript were all in simple English, and that lessens further the possibility that the appellant thought inspections was the only topic being discussed at T 7-8. 2. The appellant submitted that whilst she did say on 7 June 2022 that she was too busy for a hearing in July 2022 the Tribunal did not note that she said she would have a legal representative present (T 9). The appellant submitted that that was a course she was entitled to take, and a lawyer did then appear for her on that future hearing date (as did the appellant remotely from London, England). 3. The appellant's summary of the transcript in that submission is not entirely accurate. The discussion was about an expedited hearing date and the appellant told the Tribunal she would be overseas from 24 June to 20 July 2022 (T 14). The Tribunal said that the appellant could attend "the hearing by virtual meeting room by the computer" after which the appellant said: "Interpreter: No, that's not thoughtful because I won't carry with my computer. I will be busy to (inaudible 00:48:51) overseas. So, I won't have time for the hearing." 1. The Tribunal then said that if the appellant did not attend the hearing orders could be made in the appellant's absence. The appellant then asked whether she could have her lawyer represent her, the Tribunal said "Yes" and the appellant said she would speak to her lawyer. 2. We think the Tribunal's point at [39(6)] was simply that the appellant displayed a less than cooperative attitude and a less than proper attention to her duty under s 36(3) of the NCAT Act in terms of having the parties' dispute determined in circumstances where she was not complying with the stop work order. [NB. The appellant admitted non-compliance with the stop work order after she was served with same on 4 March 2022 in her affidavit of 29 June 2022 at [63], [79]-[89]. She again failed to comply with the extension of the stop work order made on 7 June. Her excuse was that she was unaware that any stop-work order was made on 7 June, an explanation we would not have accepted if this issue was before us given the content of the quoted transcript.] 3. The appellant then submitted the following: "(The appellant) had explained to the tribunal in these costs proceedings why she did not come in for the respondent's extensive criticism, especially in connection with what was said and done between March and July 2022. In paragraphs 8 to 10 of her costs submissions to the tribunal below she rebutted the suggestion that she was proudly defiant of a stop work order. In paragraphs 11 to 13 she rebutted the idea that she had deliberately breached stop work orders. She cited her earlier affidavit evidence about delays in receiving notice and getting messages through. The senior member acknowledged these latter points, which he described as exculpatory (at [32]). As for the former, he adopted a critical stance about 7 June 2022 without any of the above references or reference to what had been submitted and explained." 1. At [32] of its reasons the Tribunal was simply summarising and setting out the appellant's submissions, it was not making findings. The sentence "The Tribunal acknowledges these matters" is an inapt phrase but appears to us to have been simply conveying that the submission was understood. However, when it came to findings, the Tribunal did not accept those submissions and no error has been identified in it doing so. This is hardly surprising when the appellant said in her affidavit of 29 June 2022: "109 Going through Tribunal proceedings, especially when I sought legal advice from my lawyers, I have known that I should not breached the Tribunal order … … 113 In the future, I want my son to be a good person, to have faith in justice and in our legal system and I would not want him to repeat the mistake that I have done. 114 Because of my impulsive actions I have let my family down. 115 I know that because of my mistake, I might face heavy penalties .... 116 I have talked to my lawyer and they have corrected me about my opinions in this whole thing. 117 They taught and explained to me about the law and consequences of my actions and was shocked and disgusted to learn how many people have been impacted by my behaviours. 118 I think about what would have happened if I had sought legal advice in early stage and make more effective communications with the (respondent) and other involved parties." 1. Finally, although the ground included a challenge to the part of the order that costs be paid on an indemnity basis, no separate or distinct written or oral submission was made to support it. That is, there were no submissions directed to the Tribunal's reasoning at [47]-[50] and why the Tribunal erred in ordering costs be paid on the indemnity basis rather than the ordinary basis. Accordingly we treat that part of the ground as having been abandoned. Ground 3 1. Ground 3 contended that the decision below was based on a finding that the appellant had engaged in wilful misconduct which affected the whole of the proceedings when there was no basis for that finding, whether as to the fact of her engaging in wilful misconduct or the effect of such conduct on the whole of the proceedings. 2. No written or oral submissions were made as to why there was no basis (we assume that means no evidence) for the finding of engaging in wilful misconduct. That is enough to reject this ground, but in any event, we disagree with the contention given what we have said above including what we have said about the portion of the transcript of 7 June 2022 quoted and what the appellant said in her affidavit of 29 June 2022. 3. As for the second submission, that such wilful misconduct did not affect the whole of the proceedings, we disagree that it had to and disagree that it did not affect a substantial part of the proceedings. As to the first part, s 60(3)(a) and (b) are not confined to matters which only affect the entirety of proceedings. It would be erroneous to read limitations into that section which do not exist. As for the second part, a fair reading of the appellant's affidavit of 29 June 2022 shows that the appellant's conduct affected a substantial proportion of the proceedings. 4. Her affidavit reveals that her resolution to pass a by-law to allow her works to proceed was refused on 31 January 2022, the appellant commenced work on 18 February, she was told that day that she should not do any work in the absence of the respondent's consent, the respondent lodged its first and interim applications on 14 February and it obtained an ex parte stop work order on 25 February. A further interim stop work order was made on 4 March (which the appellant received that day but which she ignored). An extension of the stop work order was sought and obtained on 7 June 2022 and we have set out our views of the appellant's evidence given that day above. The first hearing day was 1 July and the appellant only served her evidence a few days before that date. The matter was settled on 30 September 2022. That chronology, together with the findings of the Tribunal to which we have referred, form a sufficient basis for the Tribunal's orders and no error has been demonstrated in the Tribunal's reasons. 5. In oral submissions, but not in writing, the appellant made three additional submissions. 6. The first was that the Tribunal considered the merits of the case at [42] of its reasons when the Tribunal was not able to do so. We disagree that that is what the Tribunal did at [42]. All the Tribunal did in that paragraph was to consider and make findings of fact about the appellant's conduct which was relevant to s 60(3)(a) and (b) of the NCAT Act. 7. The second submission was that the Tribunal was not considering s 60 in relation to [42] because in [46] of its reasons the Tribunal did not mention the factual findings in [42]. At [46] the Tribunal said: "If this is incorrect, the Tribunal finds that the OC has established special circumstances from the (appellant's) wilful conduct deduced from the transcript of proceedings of 7 June 2022 in paragraph 39 above. The Tribunal finds this conduct satisfies s 60(3)(a), (b) and (f) of the Act." 1. Reading the Tribunal's reasons as a whole the absence of mention of [42] in [46] is a typing slip. The matters mentioned in [42] were clearly relevant to the issues in dispute and clearly relevant to the findings of wilful misconduct and, in our view, were taken into account by the Tribunal. 2. The third submission was to the effect that the facts found by the Tribunal were not within the proper legal test i.e. did not fall within any of s 60(a)-(f). 3. We do not agree. The matters found by the Tribunal in our view all fell within one or more of s 60(a), (b) or (f) as the Tribunal found. Even if that were not correct, those matters could have been considered by the Tribunal under s 60(3)(g). The mere fact the Tribunal did not mention s 60(3)(g) is not important in this case. 4. The Tribunal is not a court and is required to conduct itself with minimum formality and to reach decisions according to the substantive merits of the case, and not by reference to legal form or technicalities: Moloney v Taylor [2016] NSWCA 199 at [30]. It is to exercise its powers speedily and economically: Moloney at [31]. 5. At [32]-[33] the Court in Moloney said this about identification of the correct section relevant in that case (footnote omitted): "[32] Whether the appellant had identified the correct section or not, it was plain that he sought to recover from the respondent compensation for the costs of removing the structure left behind by the respondent on site 63 in the caravan park. The CAT Act required both the Tribunal at first instance and the Appeal Panel to address the question whether the appellant was entitled to recover the amount claimed as a matter of substance, not in terms of legal form and technicalities, redolent of pre-Judicature Act formalism. [33] On appeal, the first question for the Appeal Panel was whether the Tribunal had power to make the order sought by the appellant and, if so, in what circumstances. That question was not to be answered simply by asking whether the Tribunal at first instance had identified the correct basis for such a power. By concluding that the Tribunal had relied on the wrong section and giving that as a reason for why the order could not be made and the decision not be reconsidered, the Appeal Panel put legal form and technicalities ahead of the substantive issue with which it was concerned. It also involved the Appeal Panel relying on the error of the Tribunal as a ground for refusing relief in respect of that error." Conclusion 1. We see no error in the Tribunal's reasons nor decision on costs based on s 60 of the NCAT Act. 2. Applying the constrained or deferential standard of appellate review required for appeals from discretionary decisions and the added restraint and extra caution also required to be applied when the discretionary decision was one of practice and procedure adds further weight to our rejection of this appeal. Orders 1. We make the following orders: 1. The time to appeal is extended up to and including 13 January 2023. 2. The appeal is dismissed. 3. If any party desires to make an application for costs: 1. that party is to so inform the other party within 7 days of the date of these reasons; 2. the applicant for costs is to lodge with the Appeal Panel and serve on the respondent to the costs application any written submissions of no more than three pages on or before 7 days from the date of these reasons; 3. the respondent to any costs application is to lodge with the Appeal Panel and serve on the applicant for costs any written submissions of no more than three pages on or before 14 days from the date of these reasons; 4. any reply submissions limited to two pages are to be lodged with the Appeal Panel and served on the other party within 21 days of the date of these reasons; 5. the parties are to indicate in their submissions whether they consent to an order dispensing with a hearing of the costs application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted. ********** Endnote 1. Respondent's written submissions on costs to the Tribunal dated 7 October 2022 at [6]. 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: 08 May 2023