Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cusick Real Estate Pty Limited Trading As LJ Hooker Gosford v Kochan [2018] NSWCATAP 111 Hearing dates: 07 July 2017 Date of orders: 14 May 2018 Decision date: 14 May 2018 Jurisdiction: Appeal Panel Before: A P Coleman SC, Senior Member R Perrignon, Senior Member Decision: (1) Order pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 that a hearing on the question of costs of the appeal be dispensed with. (2) Order that the appellant pay the respondent's costs of the appeal as agreed or assessed. Catchwords: COSTS: cost of appeal where appeal was from order for costs at first instance; no appeal from factual or other findings made below; special circumstances. Legislation Cited: Civil and Administrative Tribunal Act (NSW) 2013 Cases Cited: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Norma Hazel Kochan v Cusick Real Estate Pty Ltd t/as L J Hooker Gosford [2016] NSWCAT, 13 January 2017 Texts Cited: N/A Category: Costs Parties: Cusick Real Estate Pty Limited Trading As L J Hooker Gosford (Appellant) Norma Hazel Kochan (Respondent) Representation: Counsel: Ms Jadhad, Solicitor (Appellant) Mr Finney, Solicitor (Respondent) File Number(s): AP 17/20211 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer & Commercial Division Date of Decision: 06 April 2017 Before: D Moss, General Member File Number(s): COM 16/25228 Reasons for decision Background 1. On 25 September 2017 the Appeal Panel published its reasons in this appeal: Cusick Real Estate Pty Ltd t/as L J Hooker Gosford v Kochan [2017] NSWCATAP 191. The appeal was from a decision of the Consumer and Commercial division of the Tribunal made on 6 April 2017. 2. The Appeal Panel refused leave to appeal (in so far as it was required) and made orders dismissing the appeal. 3. The appeal was from orders of the Tribunal that the appellant pay the respondent's costs of the principal proceedings (Norma Hazel Kochan v Cusick Real Estate Pty Ltd t/as L J Hooker Gosford [2016] NSWCAT, 13 January 2017). 4. Critically, there had been no appeal from the decision of the Tribunal in the principal proceedings where it found that the appellant was not entitled to the award of any commission for its role as an agent in the sale of the respondent's property. The factual and other findings of the Tribunal made in the principal proceedings, which it repeated in its decision on costs which was the subject of this appeal, and on which it based its conclusion that special circumstances existed so as to enliven its discretion to award costs to the present respondent, were unchallenged. Such findings included that there was no less deserving case for an agent to be awarded commission. Despite this, the appellant sought to challenge those findings on the appeal and sought to set aside the Tribunal's decision on costs. 5. Because of the nature of the grounds of appeal, absent any other discretionary error by the Tribunal in awarding costs (of which none were identified), the failure to appeal from the underlying findings and decision of the Tribunal raised an insurmountable obstacle to the appellant succeeding on the appeal. During the appeal, when this finally became apparent, an oral application was made by the solicitor for the appellant to extend time pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (CATA) to appeal from those findings and the Tribunal's decision. The application was unsupported by evidence, was unaccompanied by any proposed grounds of appeal and was bound to fail, which it did. 6. Following the dismissal of the appeal, the respondent filed submissions seeking costs of the appeal. The appellant has filed submissions in reply. 7. Each party has consented to the Appeal Panel determining the question of costs of the appeal on the papers and without a hearing. We consider this is an appropriate course and will make an order pursuant to s 50(2) of the CATA that a hearing on this issue be dispensed with. The Principles for Costs 1. The starting point is that each party to proceedings in the Tribunal, including an appeal, are to pay their own costs (s 60(1) CATA). The Tribunal, or Appeal Panel, may award costs if there are special circumstances warranting that award (s 60(2) CATA). In this case the respondent must demonstrate special circumstances so as to warrant the award of costs in her favour. 2. Section 60(3) sets out certain matters to which regard may be had when determining if there are special circumstances to warrant the award of costs. They include the relative strengths or weaknesses of the claims of each of the parties, whether the proceedings were misconceived or lacking in substance or any other matter the Tribunal considers relevant. 3. The authorities on what "special circumstances" mean are by now well known and need not be recited in any detail. It is sufficient to note that special circumstances are circumstances which are unusual or different, without having to be extraordinary or exceptional and the discretion to award costs must be exercised judicially (see for example Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]). Disposition 1. We have had regard to the written submissions of the parties. 2. The respondent rightly points out that there was inconsistency between the grounds of appeal in the notice of appeal and the grounds of appeal identified in the appellant's submissions and pressed at the hearing of the appeal. The respondent points out the fundamental problem the appellant faced in not challenging the underlying factual findings or decision of the Tribunal. The respondent notes that the age and vulnerability of the respondent (being over 90 years of age) was relevant below and remained a relevant factor on appeal. The respondent in essence submits that the appeal was lacking in substance and merit and for these reasons special circumstances exist. 3. The appellant denies that special circumstances exist. It submits that the order for costs of the first instance proceedings remains and ".accordingly the Respondent will recover her costs." It submits that it conducted the proceedings appropriately and not in a manner so as to disadvantage the respondent, prolong the proceedings or compel the respondent to travel to Sydney for any of the hearings in the proceedings. It submits that success in the appeal does not amount to special circumstances. It submits that the ordinary rule that each party bear their own costs should apply. 4. We reject the appellant's submissions. Whilst the respondent will recover her party/party costs of the proceedings below because the appeal failed, she will not (absent an order) recover her costs of the appeal. True it is that success alone does not constitute special circumstances, but that submission does not deal with the force of the submissions made by the appellant as to the lack of merit in the appeal and the relevant consideration of the age and vulnerability of the respondent. That matter is particularly relevant having regard to the fact that, objectively, it should have been apparent (particularly as the appellant was legally represented) that absent an appeal from the underlying findings of the Tribunal, the appeal was bound to fail. 5. In these circumstances, we are of the view that special circumstances exist, empowering the Appeal Panel to make an award of costs in the exercise of its discretion. We consider that the discretion ought be exercised in favour of an award of costs, having regard to the special circumstances that we have found, and because the appeal should not have been brought or prosecuted in the manner it was. The appellant did prolong the proceedings against a very elderly respondent. It had no prospect of success on the appeal. This warrants a departure from the usual position and we will order that the appellant pay the respondent's costs of the appeal, as agreed or assessed. Orders 1. For the above reasons, the orders we make are: 1. Order pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 that a hearing on the question of costs of the appeal be dispensed with. 2. Order that the appellant pay the respondent's costs of the appeal as agreed or assessed. ********** ​ 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: 14 May 2018