Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Huo v The Owners – SP No 44652 [2024] NSWCATAP 207 Hearing dates: On the papers Date of orders: 22 October 2024 Decision date: 22 October 2024 Jurisdiction: Appeal Panel Before: G Ellis SC, Senior Member M Deane, Senior Member Decision: (1) A hearing is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). (2) The appeal is allowed. (3) The decision under review is set aside. (4) The costs decision only is remitted to the Consumer and Commercial Division of the Tribunal for reconsideration of the costs application in light of all relevant costs submissions made up to 17 June 2024 (including the Appellant's submissions of 10 May 2024), but with no further submissions, unless leave is granted by the Consumer and Commercial Division of the Tribunal. (5) There is no order for costs in the appeal. Catchwords: COSTS – Appellant ordered to pay respondent's costs – whether error on question of law – failure to take into account appellant's submissions on costs. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 Strata Schemes Management Act 2015 (NSW) Cases Cited: Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 Italiano v Carbone [2005] NSWCA 177 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: None cited Category: Principal judgment Parties: Michell Huo (Appellant) The Owners – SP No 44652 (Respondent) Representation: Solicitors: Appellant (self-represented) Madison Marcus Law Firm (Respondent) File Number(s): 2024/00260016 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 17 June 2024 Before: RC Titterton OAM, Senior Member File Number(s): 2024/000575553 REASONS FOR DECISION Overview 1. This is an appeal from a decision of the Consumer and Commercial Division (the Tribunal) awarding costs to the Respondent (the Owners Corporation (the OC)). 2. In the originating proceedings the OC had sought orders under s 181 of the Strata Schemes Management Act 2015 (NSW) for 20 penalty units of $2,200 for alleged failure by the Appellant (the Owner) to hand over the OC's books and records after the OC appointed a strata managing agent. 3. The matter was listed for hearing on 22 March 2024. The Owner did not appear at that hearing and the Tribunal made orders in relation to the return of the books and records, noting that the application for the imposition of a penalty had been withdrawn (the substantive decision). 4. The Owner did not appeal from those orders. 5. The OC sought an order for the Owner to pay its costs in the proceedings. 6. The Tribunal made the following orders on 17 June 2024 (the costs decision): 1. A hearing is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The Respondent is to pay the Applicant's costs in the sum of $13,292.38 on or before 15 July 2024. 1. The Owner has challenged the second of those orders and seeks new orders to the effect that the OC's application for costs should be dismissed with each party to bear its own costs. 2. The Owner's application to the Appeal Panel for a stay order in relation to the second of the orders was dismissed on 22 August 2024. The costs decision 1. The question of costs in the Tribunal is governed by s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). The Tribunal set out s 60 in the costs decision: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (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. (4) If costs are to be awarded by the Tribunal, the Tribunal may— (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section— costs includes— (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal. 1. At [10], the costs decision sets out: Respondent's submissions 10. No submissions were received from the respondent, who did not participate in the proceedings. 1. The Tribunal was not satisfied that special circumstances existed under s 60(3)(c) or (e) as submitted by the OC in that the Owner's defence had no tenable basis in fact or law or was frivolous or vexatious or otherwise misconceived or lacking in substance. However the Tribunal accepted that the OC had been forced into a situation where it could not manage the scheme adequately because of the actions of the Owner. The Tribunal considered this to be a relevant factor under s 60(3)(c) (at [15]). The Tribunal further held: 16. I also accept that the otherwise simple process of handing over books and records at the appointment of a new strata manager has been to the financial detriment of the applicant. I consider that this conduct, and the respondent's conduct in the proceedings, that is by not participating, unnecessarily disadvantaged the applicant : s 60(3)(a). 17. The applicant submits that it should not be liable for these costs, and these costs should be paid for by the respondent directly as it is her direct actions (or inactions of not handing over the books and records) which have caused the applicant to incur the costs. 18. I consider that there is substance in this submission and I find that special circumstances are established. 1. The Tribunal then considered whether the discretion to award costs should be exercised and found: 21. In my view, having found that special circumstances are established, and having considered the principles applicable to awarding costs generally, including that costs are compensatory, that this is a matter in which costs should be awarded. 1. In light of the details of the work performed set out in the invoices, and the "relatively low" quantum of the claimed costs, the Tribunal was satisfied that a discount of 20% allowed by the OC was appropriate and awarded fixed costs of $13,292.38. The nature of the appeal 1. A decision awarding costs is an "ancillary decision" as referred to in s 80(2)(b) of the NCAT Act: see definition in s 4(1). 2. In respect of such a decision, a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law: s 80 (2) (b). In respect of any other grounds of appeal, leave to appeal is required as regulated, in this case, by cl 12 sch 4 of the NCAT Act. 3. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. 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 Schedule 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. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). Submissions and evidence 1. In deciding the appeal, we have had regard to the following: 1. The Notice of Appeal and 28 page attachment, lodged on 15 July 2024; 2. The Reply to Appeal, lodged on 30 July 2024; 3. The Owner's submissions on the Appeal lodged on 22 July 2024 and 12 September 2024; 4. The OC's submissions on the Appeal lodged on 3 October 2024. Notice of appeal 1. The Notice of Appeal was lodged on 15 July 2024, which is within the 28 day time period specified in cl 25(4) of the Civil and Administrative Tribunal Rules 2014 (the Rules). Grounds of appeal 1. In the Notice of Appeal, the Owner set out the grounds for the appeal in part to be (emphasis added): See written reasons of order by Member Titterton filed 17 June 2024. See the registrar's record not Privy to full photo copies for tribunal attendance and service of Order Record under 2024/00057553: (1) generated 21 February 20/24 1:50 PM (2) generated 22 March 2024 3:57 pm (3) internal referral sheet dated 21/2 under 24/57553 may be used as reference for all interim listings: and (4) filing record dated 13 May 2024 for 10 May 2024 submissions. Registrars record inconsistent with statement of written reasons for decisions by Member dated 17 June 2024 at [2] and [10]. 1. Twenty-eight pages of submissions were attached to the Notice of Appeal. Nineteen pages of submissions were provided on 22 July 2024 and 47 pages (including annexures) were lodged on 12 September 2024. There is much repetition in each submission and among the three sets of submissions. Other issues, such as submissions on an injunction, appear to be relevant to the stay proceedings which has already been determined and require no further consideration by us. 2. However, scattered amongst the Owner's irrelevant and unhelpful submissions is an occasionally relevant point for which we have been required to search, in light of the Appeal Panel's statements in Cominos v Di Rico [2016] NSWCATAP 5 at [13]: 13. It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice." 1. From the extensive submissions attached to the Notice of Appeal and the Owner's submissions, we have distilled one vital point appearing at the end of the 47 pages of submissions lodged on 12 September 2024: the Owner did make submissions on the OC's costs application and they were filed and stamped on 10 May 2024. The Owner provided a copy of the front page of those submissions bearing the NCAT date stamp "Received Counter 10 May 2024 NCAT Sydney." 2. Accordingly, it is apparent in the Owner's submissions that one of her grounds of appeal to the Tribunal's costs decision can be stated as follows: 1. The Tribunal made an error on a question of law in the costs decision by failing to take into account the Owner's submissions as to costs which were lodged with the Tribunal on 10 May 2024. OC's submissions 1. The OC submitted that the Appeal should be dismissed with costs. 2. The OC submitted: Without attempting to dissect the 47 pages of submissions made by [the Owner] which [the OC] submits are either irrelevant or misconceived, [the OC's] position is set out below. 1. The OC contended that the Owner had not filed any submissions in response to the OC's submissions on costs in the original proceedings. The OC contended that there was no error of law in the costs decision, nor did the circumstances exist under which the Appeal Panel should grant leave to the Owner to appeal the costs decision. 2. Further, that the Owner had filed a multitude of submissions in relation to the appeal, none of which identified an error of law in relation to the costs order. Rather the basis of the Owner's appeal appeared to be a displeasure with the costs order. 3. The OC submitted that the Owner continued to disregard the Tribunal's orders in the substantive decision and that the Tribunal was correct to exercise its discretion and award costs at first instance. The OC submitted that the Tribunal correctly exercised its discretion to make a lump sum costs order. 4. The OC submitted that it had asked the Owner to withdraw the appeal but the OC had now been put to additional costs in defending the Appeal. The OC sought costs in the appeal under s 60(3)(c) and (e) of the NCAT Act on the basis that: the appeal is both frivolous and has no tenable basis in fact or law given there has been no credible grounds submitted by [the Owner] that warrant the bringing of the appeal or that suggest that there may be any credible error of law that would allow the Appeal Panel to overturn the costs orders. Issues 1. The issues to be determined are: 1. Should a hearing on the appeal be dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act)? 2. Has the Owner raised any questions of law such that she would have a right of appeal under s 80(2)(b) of the NCAT Act? 3. If so, should the Appeal Panel deal with the appeal by way of a new hearing under s 80(3)(a)? 4. Should a costs order be made on the Appeal in the OC's favour? Should a hearing on the appeal be dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act)? 1. Under s50(3) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) the Tribunal may not make an order dispensing with a hearing unless the Tribunal has first afforded the parties an opportunity to make submissions about the proposed order and taken the submissions into account. 2. On 5 October 2024, the Owner made an application for the Appeal Panel to dispense with the hearing and determine the matter on the basis of the written submissions provided to the Tribunal. Although we initially declined the application on the basis that the representatives of the OC could not be reached, on 8 October 2024 the OC's representatives provided submissions consenting to that course. 3. Accordingly, we were satisfied that the parties had been afforded an opportunity to make submissions regarding whether the matter should be decided on the papers. We were further satisfied that there was no utility in conducting a hearing as the issues for determination could be adequately determined in the absence of the parties, by considering the written submissions. Accordingly we are satisfied that it is consistent with the Tribunal's guiding principle under s36 of the NCAT Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings to dispense with a hearing. The hearing has been dispensed with under s 50(2) of the NCAT Act. Has the Owner raised any questions of law such that she would have a right of appeal under s 80(2)(b) of the NCAT Act? 1. The Owner produced a copy of the Tribunal's orders for submissions on costs: 1. The Tribunal makes the following interim orders 1. If the applicant has not provided a copy of the costs submissions and evidence filed with the registry on 8 April 2024, it must do so by 5 PM 29 April 2024. 2. The respondent is to file submissions and evidence in response by 10 May 2024. Those submissions must indicate whether or not the respondent opposes the tribunal determining costs "on the papers" and without a hearing. 3. The applicant may file and serve submissions and evidence in reply by 17 May 2024. 1. At [10] of the costs decision, the Tribunal set out that no submissions were received from the Owner, who did not participate in the costs proceedings. 2. On the face of the evidence provided by the Owner, that statement by the Tribunal is clearly incorrect. The Owner has provided evidence that submissions on costs were filed and lodged with the Tribunal on 10 May 2024. Although the OC states that no submissions were lodged by the Owner, the copy of the front page of the Owner's submissions was included with the Owner's submissions of 12 September 2024 (at p 35) and the OC's solicitors were beholden to address that point. They did not. 3. Section 38 of the NCAT Act prescribes the procedure of the Tribunal generally. Relevantly, s 38(2) expressly requires the Tribunal's procedures to accord with natural justice. Sub-sections (5) and (6) also embody aspects of procedural fairness. 4. The Tribunal failed to take into account the Owner's submissions on the costs application. Accordingly, the Owner was not heard on the question of costs, although she had filed submissions which appeared on the record. This is a failure to afford procedural fairness, which is an error on a question of law: Italiano v Carbone [2005] NSWCA 177 at [170], [184] and [13]; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [8]. 5. Accordingly the Owner has a right of appeal and succeeds on this point. If so, should the Appeal Panel deal with the appeal by way of a new hearing under s 80(3)(a)? 1. The full text of the Owner's submissions on costs is not in the evidence provided to the Appeal Panel and we are not in a position to deal with the Appeal by way of a new hearing. 2. The matter will be remitted to the Consumer and Commercial Division for reconsideration. 3. However this is not an opportunity for the Owner to lodge more submissions. 4. The reconsideration will be limited to the submissions which were made on costs up to the time that the Tribunal made the costs decision on 17 June 2024, unless the presiding Member otherwise gives leave for new submissions. Should a costs order be made on the Appeal in the OC's favour? 1. The OC sought a costs order in the appeal. 2. The OC failed to address the point on which the Owner has succeeded, whilst otherwise labelling the appeal vexatious, frivolous and without merit. We see no special circumstances for the award of costs to the OC. 3. Likewise there will be no costs order to the Owner. Her submissions were on the whole so irrelevant and voluminous, we were required to expend considerable time and effort to even discern the kernel of merit in the Owner's complaint. There are no special circumstances warranting a costs order in favour of the Owner. 4. There will be no order for costs of the appeal, with the intention that each party is to pay its own costs. orders 1. In light of the reasons set out above, we make the following orders: 1. A hearing is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The appeal is allowed. 3. The decision under review is set aside. 4. The costs decision only is remitted to the Consumer and Commercial Division of the Tribunal for reconsideration of the costs application in light of all relevant costs submissions made up to 17 June 2024 (including the Appellant's submissions of 10 May 2024), but with no further submissions, unless leave is granted by the Consumer and Commercial Division of the Tribunal. 5. There is no order for costs in 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: 22 October 2024