Fordham v Davies [2015] NSWCATAP 52

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Fordham v Davies [2015] NSWCATAP 52 Hearing dates: 13 March 2014 Date of orders: 26 March 2015 Decision date: 26 March 2015 Jurisdiction: Appeal Panel Before: Dr J G Renwick SC Senior Member S. Thode Senior Member Decision: Application for an order for Costs refused Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – APPEAL PANEL – COSTS APPLICATION – NO SPECIAL CIRCUMSTANCES – APPLICATION REFUSED Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: None Texts Cited: None Category: Costs Parties: Gary Fordham and Narelle Fordham (Appellants) Carly Davies and Lloyd Davies (Respondents) Representation: On the papers File Number(s): AP 14/46332 Publication restriction: None

REASONS FOR DECISION 1. On 9 October 2014, in our principal decision [2014] NSWCATAP 60, we allowed the appeal in part, but found for the reasons there set out in paragraphs 40-45, that there was an error of law which required one aspect of the decision to be set aside and remitted for reconsideration to the original Member who decided the matter. 2. The Appellants now seek costs but do not explain how their claimed figure of $385.00 for costs is arrived at. The application for costs is only in relation to the appeal. The capacity to award costs arises only in special circumstances in the circumstances set out in s 60 of the Civil and Administrative Tribunal Act 2013 (NSW), which provides as follows: 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 Division 11 of Part 3.2 of the Legal Profession Act 2004 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. The appellants rely on sub-ss 63(a) and (g) to submit first, that they were successful and "to the victor goes the spoils". In fact, they were only partly successful as the orders made in the principal proceedings made clear. In any event, s 60 requires special circumstances rather than presuming that the successful party will be granted costs. We dismiss that ground. Second, contrary to the Appellants' submissions we are not prepared to find on the basis of the material filed that the Respondent's agent had been dishonest in any way, as the Appellants' assert. 2. There being no special circumstances the application is therefore dismissed. We reserve for another occasion, the question whether s 60 is apt to include costs other than legal costs. 3. For these reasons, the application for an order for costs, in the absence of establishing special circumstances, is dismissed.