Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Clarke v Bowen (No 2) [2019] NSWCATAP 230 Hearing dates: On the papers Date of orders: 16 September 2019 Decision date: 16 September 2019 Jurisdiction: Appeal Panel Before: Armstrong J, President T Simon, Senior Member Decision: (1) A hearing on costs is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). (2) The application for costs is dismissed and each party is to pay their own costs of the appeal. Catchwords: COSTS - appeal dismissed – whether special circumstances exist for an award of costs Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 Cases Cited: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 68 Texts Cited: None cited Category: Costs Parties: Dwain Andrew Clarke (First Appellant) Stephen Charles Clarke (Second Appellant) Jason Bowen (First Respondent) Tiffany Bowen (Second Respondent) Representation: Solicitors: First Appellant (Self Represented) Second Appellant (Self Represented) First Respondent (Self Represented) Second Respondent (Self Represented) File Number(s): AP 19/17374 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 28 March 2019 Before: S Hausfeld, General Member File Number(s): GEN 19/00602 REASONS FOR DECISION Background 1. On 3 July 2019 the Appeal Panel made an order dismissing the appeal. When the orders were made, directions were also made for the parties to provide submissions and documents in relation to costs. The Respondents provided submissions on costs. No submissions or documents were received from the Appellants. These reasons deal with that question of costs. Dispensing with the Hearing 1. Section 50 of the Civil and Administrative Tribunal Act 2013 (NSW) ('NCAT Act') relevantly provides: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except: … (c) if the Tribunal makes an order under this section dispensing with a hearing, or … (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. 1. The orders made by the Appeal Panel on 3 July 2019 allowed the parties to make submissions as to any objections to the cost's application being decided on the papers. The parties have had an opportunity to make submissions about the proposed order. In circumstances where the Appellants have not made submissions, the Tribunal is satisfied that the issue of costs can adequately be determined in the absence of the parties by considering the written submissions of the Respondents. The parties would be put to unnecessary expense if a hearing on costs were held. Consideration 1. In an appeal, s 38A of the NCAT Act provides that "first instance costs provisions" apply to an appeal. Section 60 of the NCAT Act requires parties to pay their own costs unless the Tribunal is satisfied that special circumstances warrant awarding costs. Rule 38(2) of the Civil and Administrative Tribunal Rules (the Rules) dispenses with the threshold test of "special circumstances" imposed by s 60(2) of the NCAT Act where the amount claimed or in dispute in the proceedings is in excess of $30,000. 2. The Appellants appealed an order that they pay the Respondents an amount of $7,700.For that reason, r 38(2) of the Rules does not apply in the present circumstances. On that basis, we are satisfied that the Appeal Panel may only award costs in "special circumstances" as set out in s 60(3) of the NCAT Act. 3. In Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 68 the Appeal Panel found at [11] that "special circumstances" are "circumstances that that are out of the ordinary" but which need not be "extraordinary or exceptional". 4. The Respondents are seeking costs that total an amount of $1,408.87. 5. The Respondents submit that one of the Appellants, Stephen Clarke, had trespassed on their property to take photographs as evidence for the appeal. They also submitted that because the Appellants had made no effort to pay the money order, the Respondents had to institute enforcement proceedings against the Appellants in the Local Court on 11 April 2019. The Respondents have incurred costs of photocopying, toner cartridges, folders, tabs, courier fees and NCAT fees to obtain the sound recording required to comply with the orders of the Appeal Panel. They had to travel to Sydney and stay in accommodation overnight and take time off work to attend the appeal hearing. The Respondents further submit that the Appellants had indicated at the initial Tribunal hearing that they would rather pay $10,000 and proceed with an appeal instead of paying the money order to the Respondents. 6. However, on the grounds raised by the Respondents, the Appeal Panel does not find any special circumstances that warrant the making of an order for costs in their favour. The appeal proceedings were not complex. Both parties were able to represent themselves without the assistance of legal representatives for the preparation and presentation of the case. The Appellants' failure to pay the money order was ultimately remedied in the ordinary course by enforcement proceedings. The alleged trespass relates to one of the Appellants taking photos of the defects that were being raised by that Appellant. The Respondent was not put to any great lengths to respond to the documents filed by the Appellants or to attend the appeal hearing. These are not circumstances that are out of the ordinary. We find that none of the issues raised by the Respondents would constitute special circumstances. The fact that costs have been incurred does not of itself indicate circumstances out of the ordinary. 7. The application for costs is dismissed. Orders 1. Accordingly, we make the following orders: 1. A hearing on costs is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The application for costs is dismissed and each party is to pay their own costs of the appeal. ********** 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: 16 September 2019