Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hockley-Brown v Metford Road PL t/as Morpeth Gardens Village [No 2] [2023] NSWCATAP 224 Hearing dates: On the papers Date of orders: 11 August 2023 Decision date: 11 August 2023 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President G K Burton SC, Senior Member Decision: (1) Order that a further hearing on costs is dispensed with. (2) Make no order as to the costs of the appeal apart from the order made 24 February 2023 which continues to stand. (3) Note the existing order made 21 February 2023 that each party bears their or its own costs of the primary hearing the subject of appeal stands. Catchwords: APPEAL – COSTS - success on aspects of procedural fairness and on adequacy of reasons in late-amended appeal grounds – remitter to differently-constituted Tribunal – not sufficient to constitute special circumstances Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Residential (Land Lease) Communities Act 2013 (NSW) Cases Cited: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Texts Cited: Nil Category: Costs Parties: Glenda Hockley-Brown and Dennis Shane Brown (Appellants) Metford Road PL t/as Morpeth Gardens Village (Respondent) Representation: Counsel: L M Johnston (Appellants) T Bland (Respondent) Solicitors: Jacksons Solicitors (Appellants) Hunter Commercial and Property Lawyers (Respondent) File Number(s): 2023/00010031 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal NSW Jurisdiction: Consumer and Commercial Division Date of Decision: 16 December 2022 Before: M Gracie, Senior Member File Number(s): RC 22/02704 and RC 22/15646 REASONS FOR DECISION 1. In our substantive decision published 7 June 2023 we allowed the appeal for errors of law, being inadequacy of stated reasons on several matters and absence of procedural fairness on some, but not all, of the examples alleged. We determined that it was appropriate to remit the proceedings to the Tribunal for fresh hearing by a differently constituted Tribunal. 2. We ordered a timetable for submissions on questions of costs of the appeal. We said that our present view, subject to any submissions received, was to reserve questions of costs of the primary hearing to abide the outcome of the fresh hearing and to determine costs of the appeal. 3. Both parties filed and served costs submissions. Neither party sought a further hearing on costs and we shall make an order dispensing with a hearing on costs. 4. The appellants pointed out that there was an existing order made 21 February 2023 (after no costs application was received under directions made on 16 December 2022) that each party bear their or its own costs of the primary proceedings the subject of the appeal. That order had not been set aside. Unless the Appeal Panel was minded to award the appellants their costs below on the basis that the appellants were denied procedural fairness and were not accorded a fair hearing, and so should be compensated for their costs of that hearing, the appellants were content for the existing order to stand. (We note that the appellants represented themselves at the primary hearing but at some point in their disputes with the respondent had been legally represented.) 5. The respondent did not argue against the appellants' fallback position but, consistent with the respondent's position on the costs of the appeal, should be inferred to oppose any order for costs of the primary hearing in the appellants' favour. 6. Substantially for the same reasons we have given below in respect of the costs of the appeal, we consider the existing costs order in the primary proceedings should stand. 7. The primary proceedings concerned a residential community in Tenambit, near Morpeth in the Hunter Valley in NSW. 8. In RC 22/02704 filed 13 May 2022 the applicant owner of the land on which the residential community was situated, operator of the community and respondent to the present appeal sought termination of the site agreement with the current appellants and possession of the site for alleged breaches of the site agreement. 9. In RC 22/15646 filed 8 April 2022 the present appellants sought relief under various provisions of the Residential (Land Lease) Communities Act 2013 (NSW) (RLLC Act) not germane to determination of the current appeal. The thrust of the relief sought was to challenge the respondent's entitlement to charge site fees until what was said to be required regulatory approval was obtained and provided to the appellants and to seek a site agreement without provision for increases (said to have been verbally represented) and with reduction until an NBN connection was provided. Termination notices to the appellants dated 11 October 2021 and 18 February 2022 for alleged non-payment of charges and other alleged breaches of the existing site agreement were sought to be declared void. 10. On 16 December 2022 the following primary orders were made (in summary) on the substance of the proceedings (with additional orders to accommodate submissions on costs): 1. In proceedings RC 22/02704, pursuant to s 122 of the RLLC Act that the site agreement dated 13 September 2021 (the site agreement) between the owner and the appellants is terminated "by reason of serious and persistent breaches of the site agreement by" the appellants identified in the notice of termination issued by the respondent owner to the appellants dated 18 February 2022. 2. The appellants are to give vacant possession of their site by no later than 28 February 2023. 3. To the extent that the application in RC 22/15646 brought by the appellants against the owner has not already been determined and/or dismissed by previous Tribunal orders, the application in those proceedings is dismissed. 1. It was recorded that "Oral reasons for the decision were given". A full transcript, including those oral reasons, was available. 2. The successful appeal was against primary orders 1 and 2 in RC 22/02704 as set out above. We expressly noted that primary order 3 and other final orders in RC 22/25646 remained in force and undisturbed by the outcome of the appeal. 3. Section 60 of the NCAT Act, together with rule 38, and on appeal rule 38A, of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules), provide for each party to pay the party's own costs unless the Tribunal is satisfied that there are special circumstances warranting an award of costs (of which non-exhaustive examples are given in s 60(3)) or, for proceedings originating in the Consumer and Commercial Division, where "the amount claimed or in dispute in the proceedings is more than $30,000" costs may be awarded even in the absence of special circumstances. 4. Both parties accepted that in the present proceedings special circumstances were required to be established in order to justify exercise of discretion to make an order for costs. 5. The "special circumstances" in s 60 of the NCAT Act that are required to justify a costs order when rules 38 and 38A do not apply means circumstances that are out of the ordinary but not necessarily extraordinary or exceptional: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]. The opening of that gate leads to a further exercise of discretion as to the incidence and content of any costs order. 6. The appellants expressly accepted that "this is not a jurisdiction in which costs follow the event, without more", although they submitted (for reasons set out below) that "this case goes beyond the ordinary case in which an applicant or appellant succeeds – so constituting a 'special circumstance' under s 60(3)(c)" of the NCAT Act, being "the relative strengths of the claims made by each of the parties". 7. The appellants submitted that on the appeal they had had "overwhelming" success in outcome and the grounds put forward for that outcome, and that such success and its basis should have been obvious to the respondent, either from the conduct of the primary hearing and the delivery of the primary decision or at the latest from service of the amended grounds of appeal prepared with legal assistance. Further, the nature of the grounds meant it should have been obvious that the appellants would be granted an extension of time in which to run the amended grounds. Additionally, the breach on which the termination notice issued had been substantively remedied by the time of the primary decision. 8. The respondent submitted that the appellants abandoned their original appeal grounds and fashioned the grounds on which they succeeded only 15 days before the appeal hearing, and those grounds were exemplified in the appellants' submissions served (with transcript extracts relied upon) 13 days before the appeal hearing. It was only with the service of the latter that "the respondent was first made aware of the challenges finally prosecuted". 9. Further, on those grounds the appellants did not achieve entire success as to all the bases put forward for absence of procedural fairness, in particular those alleged instances of procedural unfairness of allowing the respondent to speak at the outset before attempting to contact the appellants and of what was said during attempted conciliation. The appeal succeeded effectively because of the conduct by the Tribunal which was not the responsibility of the respondent. The appellants had been driven, after a tortuous procedural history, to pay site fees. 10. As the appellants by their counsel candidly acknowledged, success, even overwhelming, is insufficient to constitute special circumstances. In our reasons for our substantive decision we referred to the complex procedural history. The appellants abandoned their original grounds and paid costs of some aspects of the proceedings to date as the price of being allowed the opportunity to run a case on which they ultimately succeeded as to outcome and most of the grounds. 11. No success was obvious and no strength in the appellants' case on appeal was evident until that late amendment even if it was articulated on existing material that made an extension of time for the amendment likely. It was a case that remained to be tested and the respondent was entitled to test it, albeit unsuccessfully in the outcome. The appellants succeeded on aspects of the conduct of the hearing which were not the responsibility of the respondent but which the respondent was able with legitimacy (as a decision of a statutory body until set aside) to rely upon and seek to defend. 12. Accordingly, we find that there are no special circumstances warranting an award of costs of the appeal. We note (as stated above) an order was made on 24 February 2023 in this appeal that the appellants are to pay some costs of the respondent in the appeal up to and including 24 February 2023. That order is not set aside or otherwise altered by this decision. Orders 1. We make the following orders: (1) Order that a further hearing on costs is dispensed with. (2) Make no order as to the costs of the appeal apart from the order made 24 February 2023 which continues to stand. (3) Note the existing order made 21 February 2023 that each party bears their or its own costs of the primary hearing the subject of appeal stands. ********** 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: 11 August 2023