Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Pines Resort Management Pty Ltd t/as Gateway Lifestyle the Pines v Marsh [2019] NSWCATAP 12 Hearing dates: 22 November 2018 Date of orders: 08 January 2019 Decision date: 08 January 2019 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member Decision: The respondent's application for costs is dismissed. Catchwords: COSTS – special circumstances – order where proceedings dismissed prior to final hearing as appeal withdrawn Legislation Cited: Civil and Administrative Tribunal Act, 2013 (NSW) Civil and Administrative Tribunal Rules, 2014 (NSW) Residential (Land Lease) Communities Act, 2013 (NSW) Cases Cited: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Silva Portfolios Pty Ltd trading as Ballina Waterfront Village & Tourist Park v Reckless [2018] NSWSC 1343 Texts Cited: Nil Category: Principal judgment Parties: Appellant: Pines Resort Management Pty Ltd t/as Gateway Lifestyle the Pines Respondent: Karlee Marsh Representation: Solicitors: L Toussaint (Property Officer) (Appellant) P Smyth (Tenants Union) (Respondent) File Number(s): AP18/21484 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 22 June 2018 Before: R Harris, General Member File Number(s): RC 17/33313 reasons for decision Introduction 1. On 16 November 2018, the Appeal Panel made an order by consent, dismissing this appeal pursuant to s 55(1)(a) of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act) as the appeal was withdrawn by the appellant. 2. The respondent has applied for costs. These reasons relate to the application for costs. History of appeal proceedings 1. The appeal concerned an application by the respondent, as applicant in the proceedings at first instance, seeking orders under the Residential (Land Lease) Communities Act, 2013 (NSW) (RC Act) in relation to the respondent's obligation to pay for electricity charges under her agreement with the appellant. In part, the dispute concerned the construction of the RC Act. 2. Although the appeal had initially been listed for call over in May 2018 and directions were made for the filing and service of evidence and submissions at that time, no hearing date was fixed due to an appeal from a decision of the Appeal Panel which was pending in the Supreme Court of New South Wales concerning the same issue. Rather, the proceedings were adjourned for further call over on 30 August 2018. On that date, the proceedings were again adjourned until 11 October 2018 for call over as, at that time, the Supreme Court had not published any reasons concerning the appeal 3. On 4 September 2018 the Supreme Court published reasons in Silva Portfolios Pty Ltd trading as Ballina Waterfront Village & Tourist Park v Reckless [2018] NSWSC 1343 (Reckless). That decision resolve the question of statutory construction. It did not resolve the potential factual contest necessary to determine whether electricity charges were properly claimed by the appellant. Consequently, the Appeal Panel listed the present appeal for directions on 27 September 2018 with a view to fix hearing date. 4. On 27 September 2018, the Appeal Panel made final directions to prepare the appeal for hearing and fixing a hearing date on 27 November 2018. 5. After these directions were made, the appellant sought an extension of time to file submissions. The timetable made 27 September 2018 was subsequently varied by consent orders made 6 November 2018. The timetable, as varied, required the appellant to provide any further evidence and submissions by 9 November 2018, the respondent to provide material in reply by 16 November 2018 and, lastly, for the appellant to provide any reply submissions by 21 November 2018. Otherwise the hearing date was confirmed. 6. By letter dated 6 November 2018, the appellant applied to withdraw the appeal. That letter was in the following terms: The appellant, Pines Resort Management Pty Ltd T/as Gateway Lifestyle The Pines has now had the opportunity to seek legal advice in relation to AP 18/21484. At this time, the appellant wishes to withdraw the appeal and advises that the hearing is no longer required. The withdrawal of the appeal does not disadvantage the respondent, since the sum of $1166.06 has been paid to the respondent in compliance with the orders made by Member R Harris on 27 April 2018. The respondent has been provided with a copy of this request. 1. It was in these circumstances that the order for dismissal was made, following the respondent advising she would consent to the dismissal but wished to make an application for costs. 2. Consequently, in dismissing the appeal, the Appeal Panel made directions for the filing and service of submissions on the question of costs. That application was listed for hearing on 22 November 2018. Submissions 1. It is common ground that the cost provisions in s 60 of the NCAT Act apply. That is, each party is to pay their own costs. However, the Tribunal may make an award for costs if satisfied there are special circumstances. Special circumstances means out of the ordinary, but not necessarily extraordinary or exceptional: see Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]. 2. The respondent provided written and oral submissions in support of its application for costs. 3. In written submissions dated 20 November 2018, the respondent said: 1. The appeal lacked merit in fact or law and had no reasonable prospects of success. Adjournment requests were made by the appellant, even after the decision in Reckless was handed down. 2. The continuation of the appeal proceedings and the seeking of "further indefinite adjournments of the hearing date and further extensions of time for compliance with procedural directions … were arguably a 'gross abuse of the legislation by frivolous and vexatious and misconceived proceedings'". 3. Having regard to the conduct of the proceedings at first instance, in so far as leave to appeal was required, leave would not be granted by the Appeal Panel as the decision at first instance was not against the weight of evidence. 4. The appellants have breached their duty under s 36 of the NCAT Act in that they have not fully complied with all orders of the Appeal Panel; 5. The conduct of the appellant has disadvantage the respondent. 1. In oral submissions the respondent accepted that, usually, the Tribunal should not adjudicate on the substantial issues in dispute where the appeal is withdrawn. 2. The respondent acknowledged that a stay of the original orders had not been granted and that the amount of $1166.06 payable to the respondent pursuant to orders made by the Tribunal on 27 April 2018 had in fact been paid. 3. When asked what account should be taken to the fact that the proceedings had, in part, been delayed awaiting the outcome of the Supreme Court decision in Reckless, the respondent submitted that the appellant should be allowed a period of 28 days to consider the decision of Davies J in Reckless but after that time costs should be payable. Further, it was open to the appellants to obtain legal advice at an earlier time if they so wished. 4. In addition, the respondent noted that it had been required to prepare the appeal book and index which, she said, arose from the conduct of the appellant. Consideration 1. As accepted by the respondent, it is generally inappropriate for the Tribunal to embark on a theoretical examination of the appeal to determine questions of costs where the appeal has been withdrawn prior to a final hearing. 2. Suffice to say, having regard to the questions of construction dealt with in the decision of Reckless and having regard to factual questions relevant to determining whether electricity charges can be claimed, even in light of this decision, I am not satisfied that the proceedings lacked merit in fact or law nor do I think they can be categorised as a "gross abuse" or frivolous, vexatious or misconceived. 3. In my view, the submission of the respondent that the appellant should have been allowed only 28 days to obtain legal advice following the decision in Reckless is itself an acknowledgement that the appeal did not lack substance and, following its delay because of the Supreme Court proceedings, a period of time or reasonably allowed to the appellant to consider its position. 4. In the present case, the appellant was represented by its officers and employees. It did so consistent with s 45 of the NCAT Act, which provides that a party has the carriage of their own matter and is not entitled to be represented by a lawyer other than with leave. As the letter from the appellant set out above reveals, the appellant obtain legal advice concerning the effect of the decision in Reckless after it was published and formed the view that the appeal should be withdrawn. In my view this conduct was reasonable and, in the circumstances of this case, I do not consider it to be out of the ordinary. 5. While the respondent did undertake work in the preparation of evidence and submissions, again, nothing was out of the ordinary in respect of the steps taken. 6. There is nothing in the conduct of this case that would suggest the appellant did not meet its obligations under s 36 of the NCAT Act and, in circumstances, where s 60(1) provides that each party is to pay their own costs, I am not satisfied there is any reason to depart from the position that each party should pay their own costs. Orders 1. The Appeal Panel makes the following orders: 1. The respondent's 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: 08 January 2019