Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cahn v The Owners – Strata Plan 586 (No 2) [2018] NSWCATAP 273 Hearing dates: On the papers Date of orders: 22 November 2018 Decision date: 22 November 2018 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member R Seiden SC, Principal Member Decision: (1) A hearing of the costs application is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013. (2) The application for costs is dismissed. Catchwords: COSTS – strata dispute – s 60 of the Civil and Administrative Tribunal Act, 2013 – absence of special circumstances Legislation Cited: Civil and Administrative Tribunal Act, 2013 (NSW) Cases Cited: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Texts Cited: Nil Category: Costs Parties: Tracy Cahn (Appellant) The Owners – Strata Plan 586 (Respondent) Representation: Solicitors: Appellant, In Person Jane Crittenden Lawyer (Respondent) File Number(s): AP 18/49092 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 19 October 2017 Before: A Bell SC, Senior Member File Number(s): SC 17/30766 reasons for decision Introduction 1. On 9 October 2018 we dismissed the appellant's appeal against an order made by the Tribunal on 19 October 2017 which required the appellant to remove her dog Lola from the property constituted as Strata Plan 586. 2. In doing so, we made directions to allow any party to make a costs application. 3. By letter dated 15 October 2018 the respondent applied for costs and provided submissions in support of that application. 4. The Appeal Panel made directions for the filing and service of submissions in reply. The respondent's submissions were due by 30 October 2018. Following a request by the respondent for an extension of time, the Appeal Panel made an order extending the time for the appellant to provide submissions until 5 November 2018. 5. Submissions were received from the appellant on 19 November 2018. They were not provided in the time allowed. However, we have read the submissions which concern, amongst other matters, the current training of Lola, the issue of whether resolutions appointing lawyers had been properly passed and whether the appellant was entitled to the invoices provided from the lawyer acting for the respondent in the proceedings. They do not assist in dealing with the issue of the application for costs made by the respondent Owners Corporation in these proceedings, which, in the first place, concerns whether special circumstances exist so as to warrant the making of a costs order. 6. In making directions in respect of submissions, the Appeal Panel also required the parties to provide submissions concerning whether an order should be made pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act) dispensing with a hearing of the costs application. 7. No submissions were received by either party on the question of dispensing with a hearing of the application for costs. However, we have formed the view that such a hearing is unnecessary and that the application can be dealt with "on the papers". Consideration 1. Section 60(1) provides that each party is to pay their own costs of the proceedings before the Tribunal. This rule applies to internal appeal proceedings of the present type. 2. The respondent sought an order for costs pursuant to s 60(2) of the NCAT Act. 3. That section requires the costs applicant to establish special circumstances. Factors relevant to considering whether or not special circumstances exist are set out in s 60(3) of the NCAT Act. Special circumstances means circumstances that are out of the ordinary, but not necessarily extra ordinary or exceptional: see eg Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]. 4. Having recounted the history of the case, the respondent relied upon the following matters as constituting special circumstances: 1. there was a repeated failure by the appellant to comply with the directions of the Tribunal concerning the filing and service of evidence, submissions and the sound recording of the hearing below; 2. the appellant's contentions concerning the dog Lola were dismissed by the Tribunal in the proceedings at first instance, and on appeal, as were her contentions concerning preference given to the evidence of witnesses for the respondent, Dr Harris and Mr Skurnik; 3. the appellant was required to provide the sound recording and other evidence which she failed to do, necessitating the respondent to incur costs in providing this material. As it has been successful, the respondent says it should not have to bear the burden of these costs. 4. The appeal had no tenable basis in fact or law in that her assertion that the Tribunal erred in failing to find Lola was an assistance animal was unsupported by any evidence. Further, the evidence subsequently provided by the appellant, of training Lola, received after the proceedings at first instance were concluded ran counter to her claim. 1. Consequently, the respondent said that the appeal had no prospects of success, special circumstances exist and an order for costs should be made in its favour. 2. In our view, the matters identified do not constitute special circumstances. Further, we are not satisfied a discretion should be exercised in favour of the respondent in any event. 3. Our reasons are as follows: 1. The appellant was self-represented. The respondent was legally represented. 2. While there may have been non-compliance with the Tribunal orders by the appellant, the matters of non-compliance to which the respondent refers relate to the provision of evidence from the proceedings at first instance. This was material which the respondent was also required to provide pursuant to the directions made by the Appeal Panel, as it wished to prove certain factual matters about what occurred in respect of Lola at the hearing, as part of its response to the appeal. 3. The fact that the appellant was ultimately unsuccessful in challenging factual findings does not make this appeal out of the ordinary. A close analysis was required of the evidence presented and what had occurred at the hearing. We are not satisfied the appeal had no tenable basis in fact or law. 4. Insofar as there was a challenge based on the ground of procedural fairness, again it could not be said that such a challenge was out of the ordinary. On the other hand, it is not out of the ordinary that a self-represented party who is not a lawyer might make submissions not fully understanding the nature and scope of the obligations upon the Tribunal in this regard. 5. The appeal was listed for hearing for a half day and the hearing concluded within that timeframe. This is quite usual. 1. As stated above, the factors identified by the respondent could not be said to be out of the ordinary. Accordingly, we are not satisfied special circumstances exist or that, in the present case, an order for costs should be made in favour of the respondent. 2. The Appeal Panel makes the following orders: 1. A hearing of the costs application is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013. 2. The application for costs is dismissed. ********** 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 November 2018