Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Steward v McKay (No 2) [2019] NSWCATAP 5 Hearing dates: 21 November 2018 Date of orders: 02 January 2019 Decision date: 02 January 2019 Jurisdiction: Appeal Panel Before: R Titterton, Principal Member D Charles, Senior Member Decision: On or before 29 January 2019, the appellant is to pay the first respondent the sum of $6,500 in respect of costs. Catchwords: COSTS – special circumstances established – lump sum costs order made Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Bathurst Regional Council v Thompson (No.2) [2012] NSWCA 420 Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152 Gizah Pty Limited v AXA Trustees Limited (No. 2) [2001] NSWADT 164 Kurmond Homes Pty Ltd v Spiteri [2015] NSWCATAP 48 Steward v McKay [2018] NSWCATAP 288 Texts Cited: Nil Category: Costs Parties: Lisa Steward (Appellant) Christy McKay (First Respondent) Jaime Anderson (Second Respondent) Pucheng Liu (Third Respondent) Representation: Counsel: C Murphy (Appellant) Solicitors: A Patrech (McKenzie Friend) (Appellant) B Gee, FCB Workplace Law (First Respondent) There was no appearance for either the Second or Third Respondents. File Number(s): AP 18/35942 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 11 July 2018 Before: J Ringrose, General Member File Number(s): RT 1814630 REASONS FOR DECISION Summary 1. This is the costs decision in relation to Steward v McKay [2018] NSWCATAP 288 (the Decision). In the Decision, we refused to extend the time for the appellant to file her notice of appeal, and otherwise dismissed the appeal. 2. In doing so, we considered, and rejected, each of her grounds of appeal. 3. In the Decision, we provided a timetable for the parties to file submissions as to costs. The only party to file submissions was the first respondent. 4. For the following reasons, we have decided to order the appellant to pay the first respondent's costs in the amount of $6,500.00. The relevant principles 1. The relevant provision of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act) dealing with costs is s 60. That section provides: (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. Submissions 1. The first respondent raises three matters in support of its contention that special circumstances are established, namely that: * there was no tenable basis for the appeal "in any general or specific sense"; * the appellant failed to meeting the guiding principle of the Act, in particular by filing a voluminous amount of documents that were not relevant to any material fact or issue; * she made an unconditional "Calderbank Offer" to the appellant prior to the first hearing of the matter. 1. The Appeal Panel has often stated that "special circumstances" are circumstances that are out of the ordinary; they do not have to be extraordinary or exceptional: Mergerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]. 2. Each case depends upon on its own particular facts: Gizah Pty Limited v AXA Trustees Limited (No. 2) [2001] NSWADT 164, and will depend on the circumstances of the individual case: Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152. Consideration 1. We will deal with each matter in turn. No tenable basis for the appeal 1. It is correct that at [68] of the Decision we noted that the appeal was without merit, however, we did not indicate that the merit was untenable, without substance or otherwise vexatious. The appeal grounds carried different weight. 2. The first appeal ground was that the appellant had been denied procedural fairness. We found this was established, "to a limited extent", but also found that this made no difference to the outcome. 3. The second appeal ground was that the Tribunal had ignored the appellant's evidence. We carefully considered the "voluminous" material filed by the appellant in the original proceeding, which had also been filed on appeal, and found that each document identified by the appellant was irrelevant. It would have made no difference to the outcome. 4. The third ground of appeal was that the calculations used were inconsistent and did not take into account four weeks' rent in advance paid by the appellant. We found that the appellant was unable to articulate in any coherent way the basis of that ground of appeal. 5. The fourth ground of appeal was that Ms Steward was unable to "play" certain crucial evidence which she says proved that she was evicted. As we noted in the Decision, it appeared that that evidence had been improperly, and perhaps illegally, obtained. Nor had it been filed or relied on in the original proceedings. 6. The fifth ground of appeal was that was that the appellant be paid $1,738.00 on account of rent paid in March 2018. As we are not satisfied that this had been claimed before the Tribunal at first instance, we did not think it appropriate to consider it on appeal. 7. A final ground of appeal was abandoned at the hearing. 8. In respect of these grounds, the first respondent relies on s 60(3)(e) of the Act, that the appeal proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance. We accept that most of the grounds of appeal were weak, indeed without merit, but we would not describe them as frivolous or vexatious. However, we do accept that the second, third, fourth and fifth grounds lack substance. 9. We consider that the weakness of the grounds of appeal favour a finding of special circumstances. Failure to meeting the guiding principle of the Act 1. Here the applicant relies on ss 60(3)(a) and (f). Our recollection is that voluminous evidence was filed by the appellant, and that overwhelmingly this evidence was simply irrelevant to our determination. We think there is substance in the first respondent's submission that the conduct and approach of the appellant to the appeal caused her to incur costs which were neither necessary nor appropriate. We consider that this matter also favours a finding of special circumstances. Calderbank Offer 1. We do not consider that this matter favours a finding of special circumstances. The Calderbank letter, albeit "unconditional", clearly related to the matter before the Tribunal below, and not the Appeal Panel hearing. The two are quite different. As was observed in Bathurst Regional Council v Thompson (No.2) [2012] NSWCA 420 at [16], the usual position is that appeal costs should primarily be determined by the issues in and the outcome of the appeal proceedings themselves. Conclusion 1. On balance, we think that special circumstances warranting an award of costs are established. 2. The first respondent seeks an order that costs be paid in the sum of $6,500. 3. If costs are awarded by the Tribunal, the Tribunal may determine by whom and to what extent costs are to be paid: s 60(4) of the Act: Kurmond Homes Pty Ltd v Spiteri [2015] NSWCATAP 48. 4. The "guiding principle" for the Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 36(1). Given the amount in issue, it would be disproportionate and contrary to the guiding principle to require the respondent to have her costs assessed. This would add further delay and further expense to what has already occurred. Consistent with the proportionality principle the appropriate course is for the Appeal Panel to determine costs. 5. On the basis of the Appendix C to the first respondent's submissions, we are satisfied that the first respondent has incurred actual party/party costs in the sum of $14,543.07 excluding GST. We consider that the $6,500.00 sought is a fair and proportionate amount to award in the circumstances. Order 1. For the above reasons, we order that; 1. On or before 29 January 2019, the appellant is to pay the first respondent the sum of $6,500 in respect of costs. ********** 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: 02 January 2019