Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ellis v The Owners – Strata Plan 80605 [2018] NSWCATAP 174 Hearing dates: 21 June 2018 Date of orders: 18 July 2018 Decision date: 18 July 2018 Jurisdiction: Appeal Panel Before: L Pearson, Principal Member D Goldstein, Senior Member Decision: 1. The appeal is dismissed pursuant to s 55(1)(a) of the Civil and Administrative Tribunal Act 2013. 2. The appellants must pay the first respondent's costs of and incidental to the Appeal proceedings on the ordinary basis, such costs if not agreed 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. Catchwords: COSTS – appeal withdrawn – whether special circumstances for award of costs Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Strata Schemes Management Act 2015 Uniform Civil Procedure Rules 2005 Cases Cited: Bechara t/as Bechara & Co v Bates [2016] NSWCA 294 Bobb v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863 Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 Hamod v State of New South Wales (No 13) [2009] NSWSC 756 Idoport Pty Ltd v National Australia Bank Limited, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23 Islam v Metricon Homes Pty Ltd [2018] NSWCATAP 116 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Rigoni v Tao [2018] NSWCATAP 166 Stankovic v State of NSW (No. 2) [2016] NSWSC 335 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2011] NSWSC 11 Category: Costs Parties: Aiden Ellis, Jocelyn Ellis, and Richard Devon (Appellants) The Owners – Strata Plan 80605 (First Respondent) Lake Group Property Services Pty Ltd (Second Respondent) Strata Committee for SP 80605 (Third Respondent) Representation: Counsel: S McMahon (First Respondent) Solicitors: McDonald Johnson (Appellants) Kerin Benson Lawyers (First Respondent) File Number(s): AP 18/14792 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: n/a Date of Decision: 27 February 2018 Before: S Hanstein, General Member File Number(s): SC 17/19945 REASONS FOR DECISION 1. On 27 March 2018 Aiden and Jocelyn Ellis and Richard Devon, owners of lots in SP 80605, lodged an internal appeal against a decision in the Consumer and Commercial Division of the Tribunal on 27 February 2018 to dismiss their application under the Strata Schemes Management Act 2015 (the SSM Act) against The Owners-SP 80605, Lake Group Property Services Pty Ltd, and the Strata Committee of SP 80605. 2. Directions were made on 19 April 2018 for the appellants to provide, by 17 May 2018, an agreed bundle of the evidence provided at first instance, the sound recording, and written submissions in support of the appeal; for the respondents to provide written submissions in opposition to the appeal by 12 June 2018; and for any written submissions in reply by 19 June 2018. The appeal was listed for hearing on 21 June 2018. 3. Direction 8 made on 19 April 2018 stated: The Appeal Panel notes there is an issue as to whether an order under s106 was originally sought and, if not, whether the Appeal Panel can make the order sought on appeal. 1. Neither party provided documents in accordance with the directions. No copy of the sound recording or transcript of the hearing below was provided. 2. On 14 June 2018 the appellants' representative advised the Tribunal that they intended to withdraw the appeal. On 20 June 2018 the respondents' representative advised that they consented to the discontinuance of the appeal on the basis that their reasonable costs of the appeal were paid. No agreement was reached between the parties, and the matter remained listed on 21 June 2018 for hearing on the issue of costs of the appeal. The first instance decision 1. Application SC 17/19945 lodged on 2 May 2017 sought orders: 1. to remove Lake Group Property Services Pty Ltd as strata managing agent; 2. to remove the current members of the Strata Executive Committee from the Strata Executive Committee of Owners Corporation SP 80605; 3. to appoint for a period of 12 months Bob Harris of Community & Strata Title Management Pty Ltd as strata managing agent to exercise all functions of the Owners Corporation SP 80605; and 4. to appoint for a period of 12 months Bob Harris of Community & Strata Title Management Pty Ltd as strata managing agent to exercise all functions of the Chairperson, secretary, treasurer and executive committee of the Owners Corporation SP 80605. 1. The dispute relates to defects in the strata scheme building, which is located in Charlestown NSW. Strata Plan 80605 comprises level three and above of the building, the lower levels being commercial premises. The strata plan was registered in 2008. As recorded by the Member in her reasons for decision, the Owners Corporation had been aware of defects with the building including external water leaks, and work had been done from time to time by the builder of the building and others in an attempt to resolve water ingress issues, which had not adequately resolved the issue. In summary, during 2014, 2015 and 2016 there had been court proceedings against the builder and the developer, and tenders obtained for building defect remedial works; general meetings were held from late 2016 through 2017 at which alternative quotations for remedial works were discussed, and resolutions passed approving specific works; and some work was done during 2017. 2. By the time of the hearing on 13 October 2017, the Member was satisfied on the evidence and found: 47 Section 106 imposes a strict duty on the Owners Corporation to maintain and keep in repair the common property. Here, there are clear defects in the property that require remediation and this has been known for some time. Whilst some work has been undertaken, significant defects remain that have not been remedied. These defects include external water leaks, concerning a number of units including unit 904. 1. The Member found that the Owners Corporation was in breach of s 106 of the SSM Act, which enlivened the Tribunal's power to make an order appointing a strata managing agent, and it was not necessary for her separately to consider whether the management of the strata scheme was not functioning satisfactorily. 2. The Member's conclusion is summarised in paragraph [51] of her reasons, as follows: 51 Notwithstanding that the Owners Corporation is in breach of s 106 of the Act, I am not satisfied, on the balance of probabilities, that an order appointing a managing agent to exercise all or any of the functions of the Owners Corporation, or all or any of the functions of the Chairperson, Secretary, Treasurer or Strata Committee of the Owners Corporation, should be made. In coming to this conclusion, I have considered the nature and extent of the breach of s106, the actual and potential impact of the breach including on Mr and Mrs Ellis, any explanation for the delay in having rectification works carried out, the steps that have been taken by the Owners Corporation and the Strata Committee, the overall functioning of the Owners Corporation and the Strata Committee, and any likely benefit to the scheme in having a managing agent appointed. 1. The Member gave detailed reasons at paragraphs [52]-[63] for her findings as to the nature of the defects and their adverse impacts, the court proceedings, the cost and timing of remedial works, and that there was no other complaint as to the function of the Owners Corporation or Strata Committee other than in response to the s 106 function. The Member concluded in paragraph [63] that she was not satisfied that an order appointing a managing agent to exercise all or any of the functions of the Owners Corporation, or of the Chairperson, Secretary, Treasurer or Strata Committee of the owners Corporation was warranted. The Member recorded at [64] her opinion that there may be significant practical difficulties in the appointment of a managing agent to exercise only the s 106 function, however she did not consider that further as she was not satisfied that the appointment was otherwise warranted. The Member was also not satisfied that an order should be made under s 238 removing the persons who comprise the Strata Committee. The Appeal 1. The Notice of Appeal identified the Orders challenged on appeal in the following terms: 1. The Tribunal's refusal to make orders requiring the Owners Corporation to comply with section 106 of the Strata Schemes Management Act 2015; 2. Make such further or other orders as are necessary to address the potential safety implications and require the prompt rectification of the defects; and 3. Make such further or other orders necessary to comply with the Strata Schemes Management Act. 1. The Grounds of Appeal were stated in the following terms: Section 106(1) of the Strata Schemes Management Act 2015 (the Act) states "An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation." As noted above, the Act places an irrebuttable obligation on the owners corporation to maintain and repair the common property. The Member states at [49] that the owners corporation is in breach of its obligation under the Act and also states at [52] there has been significant delay with rectification work. The grounds of appeal are: 1) That the member has failed to provide orders enforcing section 106 of the Act; and 2) That the member has failed to consider the urgency of the required rectification work. 1. The appellants stated that the orders that should have been made are: 1) That section 106 of the Strata Schemes Management Act 2015 be complied with in a reasonable period of time; and 2) Such further or other orders as the tribunal sees fit to comply with the Strata Schemes Management Act 2015. 1. The appellants sought leave to appeal pursuant to s 80(2)(b) and cl 12(1) of Sch 4 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) on the ground that the decision was not fair and equitable, for the following reasons: It was agreed and accepted that the owners corporation is aware of the damage. The member states at [16] that "the owners corporation have been aware for a significant time of defects with the building, including external water leaks. For example, in December 2013, the owners corporation received a report from Pink Slip Building Services in relation to the building defects." The required works and evidently the statutory breach of the owners corporation are becoming increasingly urgent and whilst the Member acknowledges that there has been a breach of the Act, no order has been made regarding enforcement of the Act, requiring the owners corporation to remedy its breach of Act or in any way satisfy the Act to maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation. 1. In the Reply to Appeal lodged on 18 April 2018 the first respondent supported the dismissal of the application, noting the evidence taken into account by the Member, and stated that the obligation to maintain and repair the common property was not challenged, commenting that it was undertaking its duty to maintain and repair the common property prioritising urgent works and no orders were necessary and it was reasonable for it to obtain a second opinion on the scope of work. The first respondent opposed leave to appeal. The Appeal Hearing 1. The second respondent did not take an active part in the proceedings below or the appeal. The Reply to Appeal and submissions were prepared on behalf of the first respondent, who was represented in the appeal by the solicitor and counsel who had appeared at first instance. The appellants had changed their legal representation after the first instance decision. 2. The first respondent provided written submissions in support of the application for costs. Those submissions included the submission (at [4] and [5]) that the appellants had not sought orders pursuant to s 106 of the SSM Act and their application at the first instance hearing to amend to include such an application was opposed, and not allowed. The respondent's solicitor, Ms Allison Benson provided a statutory declaration affirmed on 20 June 2018 outlining the communications between the parties between 3 April 2018 to 20 June 2018, annexing tax invoices (ex 1). 3. Ms Benson gave oral evidence, and was cross-examined, as to the conduct of the first instance hearing. A copy of a document headed "Annexure B – orders sought" and a section of Ms Benson's handwritten notes of the hearing (ex 3) was tendered. Ms Benson's evidence was that this copy of Annexure B was the document handed up at the hearing below, and included two additional proposed orders 6 and 7, as alternatives to the orders sought in the originating application. Proposed order 6 was for appointment of a compulsory strata managing agent to exercise the Owners Corporation's obligations under s 106 of the SSM Act. Proposed order 7 was for an order pursuant to s 106 and s 232 of the SSM Act that the Owners Corporation carry out "the urgent remedial works scope prepared by BAAM Consulting dated 13 June 2016." 4. Ms Benson's evidence was that the Member allowed the amendment to add order 6, and refused leave to amend the application to include proposed order 7. 5. The appellants relied on an affidavit sworn on 20 June 2018 by their solicitor, Mr Craig Doyle, in which he outlines the communications between the parties between 27 March 2018 when the appeal was lodged and 20 June 2018, and states that he believes that "no substantial work has been undertaken" in preparation for the appeal by either party. The costs application 1. The first respondent seeks an order that the appellants pay its costs of the appeal, by way of a lump sum costs order (as opposed to as agreed or assessed). 2. The first respondent submits that the appeal as framed was always bound to fail, as the appellants had not sought orders pursuant to s 106 of the SSM Act and their application made on the day of the hearing to include such an application was not allowed. The appellants did not notify the Tribunal or withdraw the appeal until less than a week before the hearing. Further, the appellants took no steps in preparation for the appeal as directed, and at numerous times the respondent's solicitor had to request that documents be provided and offered to provide assistance regarding obtaining documents. The respondent has had to meet the appeal, including the costs of briefing counsel on a hearing date being set. 3. The first respondent submits that the circumstances warrant the making of a lump sum costs order, because the monetary amount sought is relatively small and it is a relatively easy task for the Tribunal to determine, and referring the matter for assessment would result in increased expense and delay. The amount sought is $8,373.75 (incl GST), being 70% of the total amount of costs incurred by the respondent, namely $11,962.50. 4. The appellants submit that no order for costs should be made and each party should bear their own costs. After the first instance decision, there were some attempts to settle the matter, to determine whether the required repairs could be undertaken. The Member had found that there was a breach of s 106, justifying the grounds for lodgement of the appeal. The discontinuance of the appeal was flagged before any work was done on the appeal, and if not discontinued an extension of time would have been required. As to whether a lump sum costs order should be made, the appellant's representative at the appeal hearing noted that Ms Benson's statutory declaration including evidence as to the calculation of the costs incurred had been received late, and it was appropriate that any costs order be as agreed or assessed. He understood the rationale for a 30% discount. 5. At the conclusion of the hearing the parties were given an opportunity to consider whether they could agree on an amount of costs, if the respondent were successful in obtaining an order for costs. The parties were directed to advise the Tribunal by 29 June 2018 whether they had reached agreement. The parties have not advised that there is an agreement. It appears from communications received that the appellants' position remains that there should be no order as to costs. No leave was given for any further submissions as to costs, and we have not had regard to the additional submissions provided by the appellants to the respondents in support of their position. Consideration 1. Section 60 of the NCAT Act provides that each party to proceedings in the Tribunal is to pay its own costs. Neither the NCAT Act nor the Civil and Administrative Tribunal Rules 2014 (the NCAT Rules) contains a specific provision dealing with costs when an applicant or appellant elects to discontinue proceedings, in contrast to the position under rule 42.19 of the Uniform Civil Procedure Rules 2005 that a respondent is ordinarily entitled to its costs incurred in relation to a claim where proceedings are discontinued. An order for costs can only be made if the Appeal Panel is satisfied that there are special circumstances that warrant an award of costs, there being no claim in the proceedings below or on appeal that the amount claimed or in dispute is more than $30,000: s60 NCAT Act; rules 38, 38A NCAT Rules. 2. To be "special circumstances," circumstances may be out of the ordinary; they need not be extraordinary or exceptional: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11], applying Cripps v G & M Mawson [2006] NSWCA 84 at [60]. 3. Matters to which the Tribunal may have regard when determining whether there are special circumstances warranting an award of costs are set out in s 60(3) of the NCAT Act and include, relevantly: (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, … (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, … (g) any other matter that the Tribunal considers relevant. 1. Section 60(4) provides: (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. 1. If the Appeal Panel is satisfied that there are special circumstances warranting an order for costs, there is power to make a lump sum costs order: Islam v Metricon Homes Pty Ltd [2018] NSWCATAP 116. Whether there are special circumstances warranting an award of costs 1. The Appeal Panel is satisfied that there are special circumstances warranting an order for costs in favour of the first respondent, for the following reasons. 2. First, the correspondence between the parties' solicitors (ex 1, 3), confirms that the respondent's solicitor offered to assist the appellants' newly engaged solicitor in preparation of the appeal, by providing a list of exhibits and copies of documents if he did not have a complete set of the evidence at the first instance hearing, and assisting with preparation of transcript. On 31 May 2018 the respondent's solicitor advised the appellants' solicitor that she was continuing to prepare for the appeal hearing on the basis that there was no agreed bundle of documents (ex 1, annexure M). On 7 June 2018 the appellants' solicitor advised her that his clients did not believe the matter should proceed to hearing of the appeal (ex 1, annexure O). 3. There is no indication in that correspondence that the appellants were taking steps to prepare documents in compliance with the directions made on 19 April 2018, or to respond to the offers of assistance, or reminders by the respondent's solicitor as to the approaching deadlines. The primary focus of the appellants appeared to be on the continuing negotiations for settlement on steps to rectify the building defects. In those circumstances, the notification on 7 June 2018 that the appellants did not consider that the appeal hearing should proceed was unduly delayed. 4. Secondly, the more fundamental issue with the conduct of the appeal relates to the initiation, and continuation, of the appeal on the grounds specified in the Notice of Appeal. As recently confirmed by an Appeal Panel in Rigoni v Tao [2018] NSWCATAP 166, the general rule is that a party is bound by the way he, she or it conducts the proceedings, and is generally disallowed from raising new matters on appeal (referring to Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1). That general rule is intended to serve a broadly stated public interest in the due administration of justice, namely: " .. the finality of litigation; the difficulty of inducing an appeal court to consider new facts; the undesirability of encouraging tactical decisions not to present an issue at first instance: keeping it in reserve for appeal; and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the appeal court." 1. The issue is whether the appeal could or should have been brought seeking orders under s 106 of the SSM Act when an application for orders under s 106 had not been heard at first instance. 2. The Member's reasons at paragraphs [1]-[3] identify the application before her as an application for orders to appoint a compulsory strata managing agent to exercise all of the functions of the Owners Corporation, and of the office holders, and in the alternative, to exercise the function of complying with the s 106 obligation; and that all current members of the Strata Committee be removed. That summary reflects the terms of the application as lodged on 2 May 2017, as amended at the beginning of the hearing. 3. There is no transcript of the first instance hearing, or copy of the sound recording, provided. We accept the evidence of Ms Benson, who represented the respondents at the first instance hearing, and find that an application was made on the day of the hearing to amend the application to include orders (6) that a compulsory strata managing agent exercise the specific functions of the Owners Corporation under s 106, and (7) in the alternative that the Owners Corporation "cause to be carried out the urgent remedial works scope prepared by BAAM Consulting dated 13 June 2016." Ms Benson's handwritten notes of the hearing confirm her oral evidence that the Member discussed the proposed amended orders 6 and 7, and refused leave to include order 7. 4. Having refused the application for leave to amend to include order 7, the Member was not required to consider whether any order should be made to direct the Owners Corporation to comply with its obligation under s 106 to properly maintain and repair the common property. However, the grounds of appeal focus on what was described as the Member's failure to make orders to enforce s 106 of the SSM Act. 5. We note that we have not heard any submissions as to the merits of the appeal as framed in the Notice of Appeal. The issue is whether the appeal proceedings in those terms were entirely misconceived or lacking in substance. In circumstances where no application was made in the originating proceedings for an order requiring the Owners Corporation to comply with its obligations under s 106 and carry out repairs, and an application to amend on the day of the hearing to seek such an order was refused, there could be no basis on which an appeal should have been brought asserting that the Member had erred in failing to make such an order. Whether or not leave could properly have been sought to amend the appeal to raise any other ground of appeal based on a question of law, or under cl 12 of Sch 4, does not arise. We agree with the respondent that the appeal as framed was misconceived. 6. The appellants are not assisted by the Member's finding that the Owners Corporation was in breach of its obligation under s 106 of the SSM Act to "properly maintain and keep in a state of good and serviceable repair the common property". The application before the Member was for appointment of a strata managing agent under s 237 of the SSM Act, which enabled the Tribunal to make such an appointment if satisfied that an owners corporation has failed to perform one or more of its duties: s 237(3)(c) SSM Act. The Member's finding of breach was a necessary step in her consideration of whether in all the circumstances the powers conferred by s 237(1) or (2) should be exercised. 7. Further, the appellants were on notice at least as early as the directions made on 19 April 2018 that the grounds of appeal as identified in the Notice of Appeal were not consistent with the basis on which the matter had proceeded at first instance. On 17 May 2018 Ms Benson informed Mr Doyle by email, in which she repeated an offer to assist in obtaining a transcript, that the respondents would be objecting to the appellants' seeking orders under s 106, noting that the application to amend orders at the hearing was objected to as the respondent had not had an opportunity to put on evidence including expert evidence (ex 1, annexure I). However it was not until 7 June 2018, in a letter to the respondent's solicitor, that the appellants' solicitor acknowledged that the appellants did not believe that the matter should proceed to a hearing of the appeal, as "they believe their original claim was inappropriately couched" as their main concern was to have the Owners Corporation comply with its obligations under s 106. It was in that letter that the appellants indicated that they proposed to discontinue the appeal and start new proceedings (ex 1, annexure O). 8. We are satisfied that having regard to the way in which the appellants conducted the appeal proceedings, in initiating an appeal that was misconceived, and continuing the appeal well after the parties were alerted to the issue in the directions of 19 April 2018 and after being notified by the respondent on 17 May 2018 that it would object to the basis on which the appeal was brought, there are special circumstances warranting an order for costs of the appeal. Whether there should be a lump sum costs order 1. The circumstances in which a lump sum costs order can be made have been recently considered by an Appeal Panel in Islam v Metricon Homes Pty Ltd [2018] NSWCATAP 116. The Appeal Panel referred to the citation in Hamod v State of New South Wales (No 13) [2009] NSWSC 756 by Harrison J of Einstein J's summary of the relevant principles in Idoport Pty Ltd v National Australia Bank Limited; Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23 at [9]: "[9] For present purposes it seems convenient to commence with a recitation of the principles which inform the exercise of the discretion: i. the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation: Beach Petroleum NL v Johnson (1995) 57 FCR 119, Von Doussa J page 265: [following Purchase J in Leary v Leary [1987] 1 All ER 261 who described the purpose of the rule allowing the fixing of a gross sum as ' the avoidance of expense, delay and aggravation involved in protracted litigation arising out of taxation ' (All ER page 265)]; ii. the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable: Beach Petroleum at [16]; iii. the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available: Harrison v Schipp (2002) 54 NSWLR 738, per Giles JA at para [22]; [following ( Wentworth v Wentworth (CA, 21 February 1996, unreported, per Clarke JA) and adopted in Sony Entertainment v Smith (2005) 215 ALR 788; [2005] FCA 228; BC200500963 at para [199]; iv. a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place: Harrison v Schipp at para [22]; v. the gross sum 'can only be fixed broadly having regard to the information before the Court': Beach Petroleum at 124; [In Hadid v Lenfest Communications Inc [2000] FCA 628 at [35] it was said that the evidence enabled fixing a gross sum 'only if I apply a much broader brush than would be applied on taxation, but that ... is what the rule contemplates'.] vi. nevertheless the power to award a gross sum must be exercised judicially, and after giving the parties an adequate opportunity to make submissions on the matter: Leary v Leary [1987] 1 WLR 72 at 76, and Beach Petroleum NL v Johnson (No.2) (1995) 57 FCR 119 at 120'; vii. In terms of the necessity for the approach taken to be logical, fair and reasonable, Von Doussa J in Beach Petroleum NL & Anor v Johnson & Ors (No 2) (1995) 57 FCR 119, put the matter as follows, at paras [16]: 'On the one hand the Court must be astute to prevent prejudice to the respondents by overestimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary 'fail safe' discount on the cost estimates submitted to the Court: Leary v Leary at 265.' …" 1. In Bechara t/as Bechara & Co v Bates [2016] NSWCA 294 the Court of Appeal referred to those principles, and stated: 12. The power to award a lump-sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at 742-723 [21]-[22]; Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 123. 13. The power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Hamod v New South Wales [2011] NSWCA 375 at [818] per Beazley JA (Giles and Whealy JJA agreeing). 14. A "broad brush" approach is appropriate. To require the same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; [1999] FCA 673 at 5 [16]; Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [7]. 15. The courts have typically applied a discount in assessing costs on a gross sum basis: Hamod v New South Wales at [814]. 1. In Bobb v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863 Beech-Jones J made a lump sum costs order applying a 30% discount, based on what his Honour described as his "familiarity with the level of time and costs involved for a straightforward judicial review application of this kind", and his conclusion that the amount of work and the level of the charges were generally reasonable. In Stankovic v State of NSW (No. 2) [2016] NSWSC 335 at [16] Davies J referred to decisions in which a discount ranging between 10% to 30% had been applied. In Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2011] NSWSC 11 Barrett J referred to a discount factor of 25% to 35% as a common result of the assessment process. His Honour noted, however, at [52] that the assumption or application of a discount factor is beside the point until a reliable picture has been obtained of the sums properly attributable to the several phases and aspects of the proceedings, and continued: 52….The court must, in the first place, see that a system of quantification has been adopted which can confidently be expected to ensure that only items properly connected with the proceedings are claimed, that duplication is avoided and that, so far as can reasonably be judged, items very likely to be disallowed on assessment are excluded. And fundamentally, of course, the court needs to see the basis of charging, the rates applied and the method by which the qualification has been made. 1. In these proceedings the amount of costs said to have been incurred, based on the tax invoices annexed to Ms Benson's statutory declaration, is $11,962.50, and the first respondent is seeking an order in the amount of $8,373.75 (incl GST), applying a 30% discount. 2. We accept that in the context of those amounts, the making of a lump sum costs order would avoid the delay and additional costs arising out of an assessment should the parties not reach agreement. While recognising that a lump sum can only be fixed broadly, using a "broad brush" approach, the overriding obligation in doing so is that it be done fairly between the parties, and where an appropriate sum can be determined from the available materials. 3. We are not satisfied that it is appropriate in the present proceedings to make a lump sum costs order. While the tax invoices rendered by the first respondent's solicitor and counsel's costs are in evidence (ex 1, annexures Q, U and V). In the context where the parties were clearly negotiating to settle the substantive dispute, it is not sufficiently clear on that evidence what work was related to the appeal; and whether the costs incurred after notification of the decision to discontinue the appeal should be taken into account. Further, there is no evidence, and no express agreement by the appellants, as to the appropriateness of any particular discount which could properly be applied based on the authorities referred to above. In those circumstances we are not satisfied that there is a sound evidentiary basis on which we could properly determine the reasonable and necessary costs of the proceedings, even adopting the "broad brush" approach endorsed in Bechara. We are not satisfied that a lump sum costs order should be made, and accordingly the appropriate order is that the appellants pay the first respondent's costs as agreed or assessed. Conclusion 1. At the conclusion of the hearing on 21 June 2018 we made orders dismissing the appeal pursuant to s 55(1)(a) of the NCAT Act, the appeal having been withdrawn by the appellants. We reserved costs. For the reasons above, we are satisfied that the appropriate order is that the appellants pay the first respondent's cost of the appeal, as agreed or assessed. 2. The Appeal Panel orders: 1. The appeal is dismissed pursuant to s 55(1)(a) of the Civil and Administrative Tribunal Act 2013. 2. The appellants must pay the first respondent's costs of and incidental to the Appeal proceedings on the ordinary basis, such costs if not agreed 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. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar ********** 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: 18 July 2018