Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Trajkovski v Harrison (No. 2) [2023] NSWCATAP 228 Hearing dates: On the papers Date of orders: 15 August 2023 Decision date: 15 August 2023 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member D Goldstein, Senior Member. Decision: (1) A hearing of the first to third Respondents' application for costs is dispensed with; and (2) The Appellants are to pay the first to third Respondents' costs of the appeal. Catchwords: COSTS – From appeal against order made under section 237(5) of the Strata Schemes Management Act 2015 (NSW) Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Moseley v AB (No 2) [2017] NSWSC 1812 Trajkovski v Harrison [2023] NSWCATAP 143 Texts Cited: None cited Category: Costs Parties: Petar Trajkovski (First Appellant) Sandor Jakucs (Second Appellant) Mandana Harrison (First Respondent) Milo Brogden (Second Respondent) Carolyn Arnett (Third Respondent) The Owners – Strata Plan No. 74442 (Fourth Respondent) Representation: A. Jones for the appellants Solicitors: JS Mueller & Co Lawyers (First, Second and Third Respondents) Bannermans Lawyers (Fourth Respondent) File Number(s): AP 22/114622 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Citation: N/A Date of Decision: 25 March 2022 Before: G. Ellis SC. Senior Member File Number(s): SC 20/33622 & SC 20/47222 REASONS FOR DECISION 1. On 30 May 2023, we dismissed an appeal from a decision of the Tribunal to appoint a manager to the strata scheme in which the parties are either owners or the Owners Corporation, for reasons which are recorded: Trajkovski v Harrison [2023] NSWCATAP 143 (Primary Decision). These reasons assume familiarity with that decision. We made directions with a timetable for the filing of evidence and submissions in respect of costs, noting that the Appeal Panel may dispense with a hearing and deal with the issue on the papers. The parties were directed to address that issue in their other submissions, should they wish to. 2. The first to third respondents sought their costs of the appeal against the appellants and made submissions in accordance with the directions. The appellants made no response. Nor did they apply for an extension of time. There was no opposition to our dispensing with a hearing and determining the application on the papers. As we are satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions and other material lodged with the Tribunal, we will make an order dispensing with a hearing: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 50(2) . 3. For the reasons that follow, we will order that the appellants pay the first to third respondents' costs of the appeal on the ordinary basis. Principles relating to costs of the appeal 1. The primary provision governing costs in relation to proceedings in the Tribunal is s 60 of the NCAT Act. Pursuant to that section, each party to proceedings is generally to pay their own costs in appeals of this nature. However, pursuant to s 60(2) of the NCAT Act, the Tribunal may award costs if it is satisfied that there are special circumstances warranting it doing so. Section 60(3) provides a non-exhaustive list of relevant factors which might constitute special circumstances. 2. Each application for costs must be determined on its own merits and the central and overriding principle in any order as to costs is that of doing justice between the parties in each particular case: Moseley v AB (No 2) [2017] NSWSC 1812 at [65] - [66]. 3. "Special circumstances" are circumstances that are out of the ordinary but need not be those which are exceptional or extraordinary: Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [60] (Santow JA); Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]. Even if satisfied that there are special circumstances, we must further be satisfied that they are circumstances "warranting an award of costs": Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103 at [21]. The first to third respondents' submissions 1. The first to third respondents (costs applicants) rely on four issues they submit constitute special circumstances warranting an order for costs, which can be summarised as an allegation that the appeal was lacking in substance and conducted in a prejudicial way. 2. The costs applicants note that at [89] of the Primary Decision, we recorded that in Part Il of the Grounds of Appeal the appellants raised nine matters which alleged errors on the part of the Senior Member who heard the original proceedings. However, those nine issues were not developed in the appellant's Outline of Submissions and further, we found that no question of law was raised in those nine grounds. We categorised that as the appellants "seeking to run their case again": at [90]. 3. The costs applicants also raise our reference to Part Ill of the Grounds of Appeal and the 119 paragraphs in which the appellants sought to impugn various findings of fact by the Senior Member who heard the matter at first instance, in an "an impermissible way to conduct an appeal, being more in the nature of re-running the appellants' case". 4. At [74], [80] and [81] we rejected those grounds of appeal which relied upon the Tribunal's factual findings and determined that the challenges could simply not be made out. 5. We also rejected the appellants' complaints of bias by the Tribunal at first instance, noting that the appellants' could not adequately support or even explain how findings made against them were based upon alleged bias by the Senior Member at the first instance. 6. Finally, the costs applicants also submit that they were forced to deal with a voluminous amount of material (much of which ultimately had no tenable basis, as found) and that they could not possibly have been expected to deal with all the material which the appellants indicated they may rely on without the benefit of legal advice and representation. Determination 1. We should record at the outset that there is nothing inherently unusual in the fact that the appellants were unsuccessful in the appeal. 2. However, we agree with the costs applicants that the sheer volume of ultimately irrelevant material lodged by the appellants and their attempt to rely upon the expansive submissions said to support them (which to a large extent were not only unpersuasive but irrelevant) constitutes special circumstances warranting an order as to costs. In those circumstances and noting that the appellants did not seek to be heard in opposition to an order, we do not think it an appropriate case to attempt to tease out any differentiation between the costs necessarily incurred simply through lodgment of the appeal and those caused specifically by the excesses of the appellants in their conduct of the appeal. Orders 1. We will order: 1. A hearing of the first to third Respondents' application for costs is dispensed with; and 2. The Appellants are to pay the first to third Respondents' costs of 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: 15 August 2023