Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Frampton v The Owners – Strata Plan No 35012 [2019] NSWCATAP 265 Hearing dates: 1 October 2019 Date of orders: 31 October 2019 Decision date: 31 October 2019 Jurisdiction: Appeal Panel Before: G.K. Burton SC. Senior Member D. Goldstein. Senior Member Decision: 1. Leave to Appeal is refused. 2. The Appeal is dismissed. 3. Alexandra Frampton and Peter Frampton must pay The Owners – Strata Plan No 35012 costs of the Appeal, such costs if not agreed to be assessed on the basis set out in the legal costs legislation as defined in Legal Profession Uniform Law Application Act 2014 (NSW) s 3A. Catchwords: COSTS – Existence of special circumstances Legislation Cited: Civil and Administrative Tribunal Act 2013 Legal Profession Uniform Law Application Act 2014 (NSW) Strata Schemes Management Act 2015 Cases Cited: Associated Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 Burns v Corbett [2018] HCA 15 Collins v Urban [2014] NSWCATAP 17. Ellis v The Owners – Strata Plan 80605 [2018] NSWCATAP 174 Frampton v The Owners – Strata Plan No 35012; The Owners – Strata Plan No 35012 v Frampton [2019] NSWCATCD 15 Gan v Shop 3, 228-230 Hanvaylee Parade Kensington Pty Ltd [2016] NSWCATAP 210 at [55] John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2010] NSWCA 145 Rigoni v Tao [2018] NSWCATAP Category: Costs Parties: Alexandra Frampton and Peter Frampton (Applicants) The Owners – Strata Plan No 35012 (Respondent) Representation: Counsel: Mr R. Notley (Respondent) Solicitors: Jane Crittenden, Lawyer (Applicants) Piper Alderman (Respondent) File Number(s): AP 19/28767 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Citation: [2019] NSWCATCD 15 Date of Decision: 21 May 2019 Before: L. Wilson Senior Member File Number(s): SC 17/35958, SC 17/50958 REASONS FOR DECISION 1. The applicants appeal against a costs decision made against them in proceedings they commenced in the Consumer and Commercial Division of the Tribunal, SC 17/35958. In those proceedings the applicants applied for orders against the present respondent in connection with work to common property roofing. Their application was dismissed on 19 February 2019 in Frampton v The Owners – Strata Plan No 35012; The Owners – Strata Plan No 35012 v Frampton [2019] NSWCATCD 15 (the 'decision at first instance'). The basis for the dismissal of the application as stated at [84] – [86] of the decision at first instance, is that at the time the decision was made, the applicants were neither owners nor occupiers of a strata lot and therefore orders could not be made in relation to them. 2. By way of background, we record the fact that the applicants' proceedings in the Tribunal were heard concurrently with the present respondent's application against Mrs Frampton in SC 17/50958 for the imposition of a civil penalty pursuant to s132 of the Strata Schemes Management Act 2015. 3. In accordance with orders made in the decision at first instance, the parties filed and served their submissions on costs. 4. At [87] – [97] of the decision at first instance, the Tribunal Member stated what she was minded to do as regards costs and encouraged the parties to agree on a costs order or to refrain from making costs submissions in which case she stated that she would enter the costs order that she had foreshadowed at [93]. Nonetheless she made orders for submissions in the event that the present respondent wanted to make a costs application. The parties made submissions on costs. 5. In detailed Reasons for Decisions published on 21 May 2019 (the 'costs decision') the Tribunal Member referred to [87] – [97] of the decision at first instance and took those paragraphs into account in finding that special circumstances existed to allow her to make a costs order against the applicants. 6. In orders 2 and 3 of the costs decision, the Tribunal Member ordered the applicants to pay the present respondent's costs in the following terms: 1. on the ordinary basis up to and including 5 March 2018, as agreed or assessed; and 2. on an indemnity basis from 6 March 2018 to the end of the proceedings, including the preparation of the cost application dated 15 March 2019, as agreed or assessed; 1. The Tribunal Member was satisfied that special circumstances existed to warrant an award of costs in the present respondent's favour. The Tribunal Member also considered a Calderbank offer from the present respondent to the applicants dated 19 February 2018 (incorrectly referred to as an 18 February 2018 offer) which she found the applicants unreasonably refused to accept. The unreasonable refusal to accept the Calderbank offer was the basis for the indemnity costs order made against the applicants. 2. The applicants appeal from the costs decision and in particular against the orders which are set out at [6] above. Their amended Notice of Appeal states the Grounds of Appeal as being: '5.B.1. The Tribunal erred in making orders for costs against the Appellants in circumstances where: (a) the Application was withdrawn before it was determined; (b) The appellants ceased to be interested persons within the meaning of Section 226 of the Strata Schemes Management Act 2015 (the 'Act') on 12 December 2018, being a date prior to the determination of the proceedings. 2. The Tribunal erred in making findings of fact and law in relation to: (a) proceedings that had been withdrawn; (b) proceedings in which the Appellants had ceased to be interested parties within the meaning of Section 226 of the Act. 3. The Tribunal erred in finding that special circumstances existed that warranted the exercise of its discretion to make a cost order pursuant to Section 60 of the Civil and Administrative Tribunal Act 2013.' 1. The applicants also seek leave to appeal on the basis that the orders which are set out at [6] above, orders 2 and 3, were: 1. against the weight of evidence; 2. based on a conclusion that was not one that a reasonable Tribunal Member could reach; and 3. based on findings of fact that should not have been made after the applicants withdrew their application. 1. These grounds of appeal were developed in written submissions and in oral submissions made at the hearing. 2. The respondent opposes the orders sought by the applicants and filed a Reply to Appeal and an outline of its submissions which develop the basis upon which the appeal is opposed. The basis for an Appeal 1. The decision of the Tribunal below is an internally appealable decision and an appeal can be made from that decision as of right on a question of law, or with the leave of the Appeal Panel on any other grounds: see Civil and Administrative Tribunal Act 2013 (NSW) ('NCAT Act'), s 80(1) and (2)(b). 2. As the decision the subject of appeal is a decision of the Tribunal in the Consumer and Commercial Division, the Appeal Panel may only grant leave to appeal where it is satisfied the appellant may have suffered a substantial miscarriage of justice because: "(a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). (see NCAT Act, Sch 4, cl 12) 1. We understand the Grounds of Appeal referred to in [8] above are advanced as errors of law for which leave is not required. Leave is sought for the grounds of appeal referred to in [9]. 2. It is clear from the parties' submissions both written and oral that a critical issue for the applicants and their prospects of success in this Appeal is whether they withdrew SC 17/35958 in the proceedings at first instance. Pursuant to s55(1)(a) of the NCAT Act: '(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: (a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate'. 1. In the decision at first instance against which no appeal has been filed, the Tribunal Member invited the applicants to withdraw their application. The applicants now state that the Tribunal Member was wrong not to have treated their correspondence and communications after such invitation as a withdrawal of their Application. The applicants submit that, as a consequence of not treating their correspondence and communication as a withdrawal of their Application and in failing to dismiss the proceedings on the basis of the withdrawal, the Tribunal Member erred by making findings of fact in the decision at first instance when they were neither necessary nor required. As a result the applicants submit that the Tribunal Member's costs decision, which was based in part on the findings of fact so made, is infected with error and was based on irrelevant considerations insofar as it relied on factual findings made in the decision at first instance. Background 1. The decision at first instance refers, in the section entitled Procedural History, to a number of important items of correspondence between primarily the applicants and the Tribunal. This correspondence arose because on and after the last day of hearing it emerged that the applicants intended to sell the lot in the strata scheme that was the subject of the proceedings, and to relocate to Queensland. The relevant items of correspondence are described below. 2. The first item of important correspondence was dated 12 December 2018 and therefore was made approximately 1 month 10 days after the last day of the hearing which was on 2 November 2018. That correspondence was written by the applicants' solicitor. It stated that: 1. One of the applicants had sold the relevant lot in the strata scheme and that settlement of the sale took place on 12 December 2018; 2. The applicants did not own property in New South Wales and were now permanent residents of Queensland; 3. The proceedings concerned parties of different states and the principles expressed by the High Court of Australia in Burns v Corbett [2018] HCA 15 applied so that the Tribunal no longer had power to determine the disputes; and 4. It would be appropriate to dismiss both proceedings on the grounds that the Tribunal lacked the jurisdiction to determine a dispute involving the applicants who were then permanent residents of Queensland. 1. On 21 December 2018 the Tribunal sent a lengthy letter to both parties' solicitors. The relevant extracts of the letter are set out in full in the decision at first instance at [14], which we will not repeat. However the relevant points made by the Tribunal Member were that: 1. The principles expressed in Burns v Corbett had no application; 2. If the applicants 'wish(ed) the Tribunal to dismiss SC 17/35958 as they wish to withdraw it, they must write to the Tribunal, carbon copying the owners corporation, no later than close of business Friday, 4 January 2019 and ask the Tribunal to make such an order pursuant to s.55(1)(a) of the Civil and Administrative Tribunal Act 2013.' 3. The fact that one of the applicants was no longer an owner in the strata scheme may give rise to issues which might need to be addressed; and 4. The Tribunal would hold off handing down a decision in the proceedings until after 4 January 2019 to give the applicants a chance to inform the Tribunal whether they wished to withdraw their application and for the Tribunal to consider whether the sale of the applicant's lot gave rise to the need for a further hearing. 1. On 2 January 2019 the present respondent's solicitors wrote to the Tribunal stating among other things that the applicants' solicitor no longer acted for the applicants. 2. On 9 January 2019 the Tribunal wrote to the parties themselves and to their solicitors. Again, the relevant extracts of the letter are set out in full in the decision at first instance at [17] which we will not repeat. However the relevant points made by the Tribunal Member were that: 1. If the applicants wished the Tribunal to dismiss SC 17/35958 as they wish to withdraw it, they must write to the Tribunal, carbon copying the owners corporation, no later than Friday, 18 January 2019; and 2. The applicants were required to state when they were unavailable in January, February and March to appear at a hearing to address the issues arising out of the sale of their lot in the strata scheme. 1. On 11 January 2019 the applicants' then former solicitor wrote to the Tribunal confirming that she had sent the Tribunal's 21 December 2018 letter to the applicants. 2. On 17 January 2019 the applicants wrote a long letter to the Tribunal which the Tribunal member addressed in the Procedural History section of her decision at first instance. At [22] – [23] of her decision the Tribunal Member extracted what the applicants wrote in response to her 9 January 2019 letter: 'Finally, presumably in answer to the question 1 which was "If the Framptons wish the Tribunal to dismiss SC17/35958 as they wish to withdraw it, they must write to the Tribunal, carbon copying the owners corporation, no later than Friday 18 January 2019" the Framptons wrote: 'We presume that as we are not an "owner" of a Lot or an "interested person" within the meaning of section 226 of the Strata Schemes Management Act 2015, the Tribunal does not have the power to make the orders we sought under section 232 of the Act, or the orders the Owners Corporation sought under section 132 of the Act. We would have thought that it is necessary to dismiss the applications for those orders in circumstances where we neither own a Lot in the strata scheme, or any property in New South Wales, and are not residents of New South Wales.' Questions 2 – 4 inclusive asked by the Tribunal on 9 January 2019 were not answered by the Framptons. Instead they wrote the following: 'In relation to the Owners Corporation's application for penalties under Section 147 of the Act, for breaching by-laws, we rely on the submissions made by our solicitor at the third day of hearing; namely, that we cannot have acted in breached [sic] of a by-law after the notice to comply was served, as their air-conditioner was removed from the roof by the Owners Corporation in March 2017 and has not been re-installed by us since. It was left in the courtyard of the Lot for the current owner of Lot 24 when we vacated the premises prior to 12 December 2018. Finally we would ask SM Wilson to hand down her Decision and we will then decide on any further action, if any, we will take.' Ground of Appeal 5.B.1(a) - Was there a withdrawal of the applicants application ? 1. The applicants submit that the communications which we have extracted and referred to amounted to a withdrawal of their application. We are unable to accept that submission for a number of reasons. 2. First, the applicants' solicitor's letter dated 12 December 2018 referred to in the decision at first instance submitted that it would be appropriate to dismiss both sets of proceedings on the grounds that the Tribunal lacked the jurisdiction to determine a dispute involving the applicants who were residents of Queensland. We find that it is clear on the face of the applicants' solicitor's letter dated 12 December 2018, that she did not intend to withdraw the applicants' application such that it was required to be dismissed under s 55(1)(a) of the NCAT Act. Rather, her letter was clear that she was submitting, based on Burns v Corbett, that the proceedings should be dismissed because they concerned residents of different states with the result that the Tribunal lacked the jurisdiction to determine the dispute. The Tribunal rejected that submission. There is no appeal against its decision to do so. We reject any submission that this letter was a request for the applicants to withdraw their application with the result that it be dismissed under s 55(1)(a) of the NCAT Act. 3. Secondly, we find that the Tribunal Member made it clear that, if the applicants wanted to have their application dismissed because they had decided to withdraw it, they had the opportunity to do so by making such an intention known to the Tribunal. 4. The Tribunal Member stated that position clearly on 21 December 2018 when she stated, in the letter of 21 December 2018 extracted at [14] of the decision at first instance: 'However if the Framptons wish the Tribunal to dismiss SC17/35958 as they wish to withdraw it, they must write to the Tribunal, carbon copying the owners corporation, no later than close of business Friday 4 January 2019 and ask the Tribunal to make such an order pursuant to s.55(1)(a) of the Civil and Administrative Tribunal Act 2013' and 'The Tribunal may conclude that it can determine SC17/35958 and SC17/50958 without the need for a further hearing. However it will not do so until after 4 January 2019, to give the Framptons an opportunity to inform the Tribunal if they wish to withdraw their application'. 1. The Tribunal Member's second letter of 9 January 2019 to the applicants, who were not represented at that time, similarly made the position clear when she stated at [17] of the decision at first instance: 'If the Framptons wish the Tribunal to dismiss SC17/35958 as they wish to withdraw it, they must write to the Tribunal, carbon copying the owners corporation, no later than Friday 18 January 2019.' The Tribunal may conclude that it can determine SC17/35958 and SC17/50958 without the need for a further hearing. However it will not do so until after 18 January 2019, to give the Framptons an opportunity to inform the Tribunal if they wish to withdraw their application, and the Tribunal to consider more fully if the sale of lot 24 does give rise to the need for a further hearing.' 1. Thirdly, we find that the correspondence set out above made it completely clear that, if the applicants wanted the Tribunal to dismiss their application on the basis that they wanted to withdraw it, they were, subject to the time restraints imposed, entitled to do so by writing to the Tribunal indicating that they wished to adopt that course. In our view the Tribunal adequately set out the position in clear terms including a reference to the relevant section of the NCAT Act, s 55(1)(a). 2. Fourthly, the applicants did respond to the Tribunal's correspondence on 17 January 2019. In doing so we find that the applicants did not state that they wanted to withdraw their application. They stated that, since they presumed that they were neither an owner of a lot nor an interested person within the meaning of s 226 of the Strata Schemes Management Act, the Tribunal did not possess the power to make orders in their application or in the application brought by the present respondent to which we have referred in [2] above. They stated to the Tribunal member that it was on those grounds that the applications ought to have been dismissed. 3. They then requested the Tribunal Member to hand down her decision. 4. We re-iterate that, having regard to the above communications we do not accept that the applicants requested the Tribunal Member to withdraw their application and then dismiss the proceedings. We also reject the applicants' submission that their letter to the Tribunal of 17 January 2019, the relevant parts of which have been extracted in [30] above, should be construed or understood to be a request that the Tribunal dismiss their application on the basis that they had requested it to be withdrawn. 5. As a result of our findings, we reject Ground 5.B.1.(a) of the Amended Notice of Appeal. Ground 5.B.1.(b) - Interested persons 1. Ground 5.B.1.(b) of the Amended Notice of Appeal is: 'The Tribunal erred in making orders for costs against the Appellants in circumstances where: (b) The appellants ceased to be interested persons within the meaning of Section 226 of the Strata Schemes Management Act 2015 (the 'Act') on 12 December 2018, being a date prior to the determination of the proceedings' 1. It is our view that, despite the fact that the applicants ceased to be 'interested persons' within the meaning of s 226 of the Strata Schemes Management Act on 12 December 2018 because they, or one of them, was no longer the owner of a lot in the strata scheme, there was no error in the Tribunal Member making a costs order against them. We find that the Tribunal Member had jurisdiction to make a costs order against the applicants under s 60 of the NCAT Act and in particular under s 60(4) which states: '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. It is common ground that the applicants were 'interested persons' within the meaning of s 226 of the Strata Schemes Management Act at the time they commenced SC 17/35958. They were 'interested persons' when they closed their case in the proceedings. Those facts were sufficient in our view to allow the Tribunal Member to make a costs order against them under s 60 of the NCAT Act. For these reasons we reject Ground 5.B.1.(b) of the Amended Notice of Appeal. Ground 5.B.2 – errors in making findings of fact and law 1. Ground 5.B.2 of the Amended Notice of Appeal raises as a Ground of Appeal that the Tribunal erred in making findings of fact and law in relation to: (a) proceedings that had been withdrawn; (b) proceedings in which the Appellants had ceased to be interested parties within the meaning of Section 226 of the Act. 1. We have stated that we do not accept that the applicants requested the Tribunal Member to withdraw their application and then dismiss the proceedings. We have also rejected the applicants' submission that their letter to the Tribunal of 17 January 2019 should be construed or understood to be a request that the Tribunal dismiss their application on the basis that they had requested that it be withdrawn. 2. It follows that we reject the applicants' Ground of Appeal that the Tribunal erred in making findings of fact and law in relation to proceedings that had been withdrawn. 3. This Ground of Appeal also asserts that the Tribunal erred in making findings of fact and law in relation to proceedings in which the Appellants had ceased to be interested parties within the meaning of Section 226 of the Strata Schemes Management Act 4. The findings of fact that the applicants refer to in [5] and [6] of their Appeal submissions were made in the decision at first instance. The applicants have not appealed against that decision. We have found already that the Tribunal Member was obliged to make that decision having heard the proceedings, when the applicants did not seek (despite repeated invitation) to withdraw the proceedings. To the extent that the applicants seek to attack findings of fact made in that decision in these Appeal proceedings, we find that to be impermissible. 5. The applicants also submit that the Tribunal erred in the costs decision by taking into account factual findings made in the decision at first instance, when considering a Calderbank offer made by the present respondent. In circumstances where the applicants have not challenged findings of fact made in the decision at first instance and the Tribunal was required to determine the substantive proceedings, we do not accept that the Tribunal was precluded from having regard to those findings when making its decision in the costs decision. To the contrary, it is our view that the Tribunal Member was entitled to take into account all relevant factual findings in the decision at first instance when making a costs decision. A decision on costs is not an opportunity for parties to re-agitate factual issues which have been determined in the proceedings. 6. It follows that we reject the applicants' Ground of Appeal that the Tribunal erred in making findings of fact and law in relation to proceedings which it is submitted had been withdrawn and in which the applicants ceased to become interested persons. Ground 5.B.1.3 - Finding of special circumstances 1. Ground 5.B.3 of the Amended Notice of Appeal raises as a Ground of Appeal that the Tribunal erred in finding that special circumstances existed that warranted the exercise of its discretion to make a cost order pursuant to Section 60 of the NCAT Act. 2. At [87] – [97] of the decision at first instance, the Tribunal Member stated that she was minded to find that special circumstances were present based on her acceptance of the respondent's submissions made on various occasions and also based on the evidence in the proceedings. In the costs decision the Tribunal Member at [13] referred to [87] – [97] of the decision at first instance and stated that the applicants had not dissuaded her from those findings. The Tribunal Member then stated: 'On the basis of the conduct of the proceedings, the outcome of the proceedings, and all the other reasons referred to by the OC in their extensive submissions on this point, the Tribunal is satisfied that special circumstances exist to warrant an award of costs in the OC's favour.' 1. Neither the applicants' written submissions nor their oral submissions at the appeal hearing address why, in making the above findings that special circumstances existed to warrant an award of costs, the Tribunal fell into error. 2. The applicants bear the burden of persuading us that the Tribunal made an error of law in finding that special circumstances existed to allow a costs order to be made under s 60 of the NCAT Act. As no submissions have been made to support this ground of appeal, we reject it. Leave to appeal 1. In paragraph 6.A.1 of the annexure to the Amended Notice of Appeal the applicants apply for Leave to Appeal on the basis that orders 2 and 3 were: 1. against the weight of evidence; 2. based on a conclusion that was not one that a reasonable Tribunal Member could reach; and 3. based on findings of fact that should not have been made after the applicants withdrew their application. 1. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. 2. The statutory regime referred to above has been considered and explained by an Appeal Panel in Collins v Urban [2014] NSWCATAP 17. The statutory regime involves a two stage process. First, has the appellant satisfied the Appeal Panel that she may have suffered a substantial miscarriage of justice because the decision at first instance was not fair and equitable, or against the weight of evidence, or because new evidence has arisen which was not reasonably available at the hearing? Only if so satisfied, the Appeal Panel may proceed to the second stage to determine whether it should exercise its discretion to grant leave and that discretion should be exercised in accordance with well-established principle. 3. The relevant passages in Collins v Urban as regards the first stage are at [76] – [79] (we omit references made to authorities): 'Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" … (2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred … 1. As regards the second stage, the Appeal Panel in Collins v Urban concluded at [84(2)] that: '(2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.' Against the weight of evidence 1. Paragraph 6.B of the Annexure to the Amended Notice of Appeal sets out the basis upon which it is contended that the costs decision caused the applicants to suffer a substantial miscarriage of justice because it was against the weight of evidence. Reference is made to four (4) matters of fact which we summarise as being: 1. No evidence that the applicants had conducted the proceedings in a manner that caused disadvantage or unnecessarily prolonged the proceedings; 2. Related to an offer of settlement made by the respondent on 18 (sic) February 2018; 3. A finding that the Tribunal's decision was a worse outcome for the applicants than had they accepted the offer made on 18 February 2018; and 4. Findings of fact were made when they ought not to have been. Causing disadvantage or unnecessarily prolonging proceedings 1. The applicants have not referred specifically to the paragraphs which contain the findings that they contend were against the weight of evidence. We find that the Tribunal Member made no finding in the costs decision that the applicants conducted the proceedings in a manner which has caused disadvantage or unnecessarily prolonged the proceedings. Consequently, we reject the Ground stated in 6.B.(a)(i) of the Annexure to the Amended Notice of Appeal as a basis for establishing that the costs decision was against the weight of evidence. Offer of settlement made on 19 February 2018 1. The application for leave to appeal at 6.B.(a)(ii) of the Annexure to the Amended Notice of Appeal is based on [15] of the costs decision which states: 'The 18 February 2018 offer proposed that each party withdraw their claim against the other, pay their own costs, and enter into a deed which is in line with the findings of the Tribunal in the Decision. The offer was open until 5 March 2018. The Tribunal finds that the outcome of these proceedings is worse than had the Framptons accepted this 18 February 2018 offer.' 1. The applicants submit that the respondent's 19 February 2018 offer was not 'in line' with the findings of the Tribunal and that there were no findings of the Tribunal which corresponded to the elements of the 19 February 2018 offer. 2. The Calderbank offer made by the respondent in the decision at first instance on 19 February 2018 proposed that a deed containing 6 elements be entered into with the result that the proceedings would be brought to an end. The 6 elements were: 1. The respondent would consent to a development application seeking approval for the applicants' air conditioning condenser to be reinstalled to the rooftop area of the property; 2. If the development application was approved, the air conditioning condenser would be reinstalled to the roof of the property at the respondent's expense and that the applicants would be responsible for ensuring the condenser was in good working order; 3. That the applicants would be permitted to reinstate the hatches in the roof of the property at their cost on condition that they agreed to a by -law covering the hatches and that the applicants would be responsible for any damage caused to the roof as a result of regular access to the roof for the purposes of maintenance of the air conditioning system; 4. That the applicants would be responsible for all necessary works to repair the timber members in the roof of the property and once the work was completed would provide the respondent with an engineer's report concerning that work; 5. That each party would bear their own costs of the proceedings; and 6. That the parties would otherwise release each other from any legal claims that they may have had against the other in respect of the subject matter of the proceedings. 1. The applicants Appeal Submissions do not develop this Ground beyond what is stated in the Amended Notice of Appeal. 2. There were findings of fact made in the decision at first instance by the Tribunal Member in connection with some, but not all, of the six (6) elements of the 19 February 2018 offer. The findings of fact related to the need for development approval, the fact that the applicants did not agree to the proposed by-law, or to bear the cost of installing the hatches. It was also found that the applicants did not repair the roof timbers. 3. In our view this ground of appeal does not relate to a situation where the decision under appeal was against the weight of evidence. Rather, we are of the view that the findings of fact made by the Tribunal in the decision at first instance did not justify the statement made in the first sentence of [15] of the costs decision. It is open to conjecture whether the statement made in the first sentence of [15] of the costs decision bears upon the finding in the last sentence of that paragraph. In our view it does not, because we have formed the view that the last sentence of [15] of the costs decision is explicable by reference to other factors which we will explain in connection with the next ground of appeal. As a result we do not accept that the applicants suffered a substantial miscarriage of justice because of the Tribunal's finding that the respondent's 19 February offer was 'in line with the findings of the Tribunal in the Decision'. It follows that we reject the applicants application for leave to appeal based on this ground. Tribunal decision – worse outcome 1. In relation to the matter referred to at [53(3)] above, the applicants' Amended Notice of Appeal states at 6.B.(a)(iii): 'a finding should not have been made by the Tribunal that the Tribunal's decision was a worse outcome for the Appellants than had they accepted the offer of settlement made by the Respondent on 18 February 2018, as that finding required the Tribunal to determine the Appellant's application at a time after the Appellant's had withdrawn their application on the grounds that they no longer had standing to bring it'. 1. The applicants' written submissions do not develop this aspect of the application for Leave to Appeal. 2. The Tribunal's finding at [15] and at [21] that: 'the outcome of these proceedings is worse than had the Framptons accepted this 18 February 2018 offer' is in our view to be understood as meaning that, because the applicants' application was dismissed, they were in a worse position than they would have been had they accepted the 19 February 2018 offer which would have conferred substantial benefits upon them, one of which being that that they would not be exposed to an application for the costs of the proceedings. 1. The consideration of a Calderbank offer and deciding whether the offeree, in this case the applicants, end up worse off than if the offer had been accepted is in our view not ordinarily associated with making a decision which is against the weight of the evidence. In our view a decision regarding whether the recipients of a Calderbank offer end up worse off than if the offer had been accepted will come down to whether the exercise of the discretion regarding an award of costs was properly exercised in accordance with accepted principles. However this is not how this aspect of the appeal is put. 2. We refuse leave to appeal based on this ground. Findings of fact were made when they ought not to have been 1. The applicants' Amended Notice of Appeal at 6.B.(a)(iv) and (v) seeks leave to appeal on the basis that the costs orders appealed against were made after findings of fact were made in the decision at first instance that had been withdrawn. 2. We have found that the applicants did not withdraw the application and also that, despite the fact that the applicants were no longer 'interested persons', the Tribunal nonetheless had the power to make a costs decision in the proceedings. 3. The grounds stated in 6.B.(a)(iv) and (v) of the Amended Notice of Appeal are advanced on the basis that the matters raised arise because the decision was against the weight of the evidence. This in our view is a misconception of the nature of these issues which raise issues of law, namely, whether the Tribunal took into account irrelevant considerations (being the findings in the decision at first instance) because it ought not to have made that decision at first instance. 4. Once we determine that the decision at first instance was properly made and there was no error of law (as we have found above), the findings in that decision cannot be challenged as errors of fact in the costs appeal, when no appeal was brought against the substantive decision. Conclusion not one that a reasonable tribunal member could reach 1. The applicants' Amended Notice of Appeal at Ground 6.A.1.iii seeks leave to appeal on the basis that the orders made by the Tribunal 'were based on a conclusion that was not one that a reasonable tribunal member could reach'. 2. Clause 12 of schedule 4 of the NCAT Act does not allow an application for leave to be brought or granted on this basis. The grounds upon which leave may be granted are referred to above at [13] above. Accordingly, leave to appeal on this basis is refused. 3. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, the Appeal Panel stated at [21] that a question of law would include 'Whether the decision is so unreasonable that no reasonable decision-maker would make it'. We therefore accept that Ground 6.A.1.iii raises a question of law for which leave is not required. It is notable that the applicants do not identify the conclusion which they say no reasonable Tribunal Member could reach. However Ground 6.A.2 states: 'The Appellants notified the Tribunal on 12 December 2018 that they withdrew their Application, because by that by that date, they had sold their unit in Strata Plan No. 35012 and had moved to live in Queensland. From that date, each of the Appellants ceased to be an 'interested person' within the meaning of section 226 of the Strata Schemes Management Act 2015, and the Tribunal ceased to have power to make the orders they sought under Section 232 of the Act, or any ancillary orders, including orders as to costs.' 1. This paragraph repeats what has been stated elsewhere by the applicants in their amended Notice of Appeal and has no stated or obvious connection to the grounds upon which leave to appeal is sought. 2. If the matters raised in the paragraph extracted above are relied upon as being conclusions made by the Tribunal Member that no reasonable Tribunal Member could reach, we reject that submission. We have found that the applicants by their solicitor's letter dated 12 December 2018 did not withdraw the applicants' application. We have also found at [35] and [36] that, despite the applicants ceasing to be 'interested persons' under the Strata Schemes Management Act by 12 December 2018, that of itself was not an issue that prevented the Tribunal Member making a costs order in the proceedings. 3. For us to find that the Tribunal Member's decision was so unreasonable that no reasonable decision-maker would make it, would require, as Lord Greene MR stated in Associated Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 230, 'something overwhelming'. 4. In Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2010] NSWCA 145, Tobias JA referred to the Wednesbury formulation in the following terms at [104] – [106]: 'Finally, as her Honour noted at [115], in Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) 138 LGERA 11 Spigelman CJ, with whom Beazley JA and myself agreed, stated at [129]: "Perhaps the most appropriate formulation [of Wednesbury unreasonableness] is whether the decision is 'illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds' ". This formulation was adopted by myself in Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 at [71]. It was also adopted and applied by myself, with the agreement of Mason P and Hodgson JA, in Notaras v Waverley Council [2007] NSWCA 333; (2007) 161 LGERA 230 at [122]. In Notaras I cited (at [124]) [31] of the judgment of Biscoe J in Save Our Streets Inc v Settree [2006] NSWLEC 570; (2006) 149 LGERA 30 where his Honour drew a distinction between a decision which the court considers is unreasonable and a decision which the court considers is so unreasonable that no reasonable body could have come to it. The latter required "something overwhelming": Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [44]. In Wednesbury itself, Lord Greene MR at 229 referred to the relevant unreasonableness as "something so absurd that no sensible person could ever dream that it lay within the power of the authority". In Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at 821, Lord Diplock defined Wednesbury unreasonable decisions as those which "looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached them". In Puhlhofer v Hillingdon London Borough Council [1986] UKHL 1; [1986] 1 AC 484 at 518, Lord Brightman said that the unreasonableness must be "verging on an absurdity". 1. The applicants have not identified any factor in the decision made by the Tribunal Member that could justify a finding that the decision appealed against was 'illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds' as referred to in the extract quoted above. 2. We reject the ground of appeal based on the submission that the orders appealed against were based on a conclusion that was not one that a reasonable tribunal member could reach. Findings should not have been made 1. In 6.A.1.iii of the Amended Notice Of Appeal the applicants also seek Leave to Appeal on the Ground that the orders made by the Tribunal: 'were based on findings of fact that should not have been made after the Appellants withdrew their Application.' 1. Clause 12 of schedule 4 of the NCAT Act does not allow for leave to be granted on this basis. The grounds upon which leave may be granted are referred to above at [13] above. Accordingly, leave to appeal on this basis is refused. In any event, we have also found at [35] and [36] that, despite the applicants ceasing to be 'interested persons' under the Strata Schemes Management Act by 12 December 2018, that of itself was not an issue that prevented the Tribunal Member making a costs order in the proceedings. Leave to appeal is also rejected on this basis. Grounds of Appeal not raised in the costs decision 1. In its submissions at [27] the respondent states that none of the matters raised in the first or second Grounds of Appeal was raised by the applicants in their submissions in the costs decision. The respondent submits that the Appeal Panel has confirmed that the general rule is that the party is bound by the way he, she or it conducts the proceedings and is generally disallowed from raising new matters on appeal, although we accept that the authorities we discuss below do countenance on occasions the introduction on appeal of legal arguments that do not raise new issues of fact. The cases of Ellis v The Owners – Strata Plan 80605 [2018] NSWCATAP 174 at [35] and Rigoni v Tao [2018] NSWCATAP 166 at [56] – [58] are relied upon. 2. At [35] of Ellis v The Owners – Strata Plan 80605 an Appeal Panel stated: '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. In Gan v Shop 3, 228-230 Hanvaylee Parade Kensington Pty Ltd [2016] NSWCATAP 210 at [55], after referring to Coulton v Holcombe, an Appeal Panel commented that: 'The considerations favouring finality of litigation are at least as strong, and probably stronger, in the case of the Tribunal given the importance attached to the expeditious and inexpensive disposition of proceedings under the [NCAT] Act." 1. The applicants' solicitor agreed at the Appeal hearing that the matters raised in the Appeal were not raised by the applicants as submissions in the costs decision. To allow the applicants to raise the matters set out in section 5.B.1. and 2 of the Amended Notice of Appeal in this appeal would in our view cause injustice to the respondent by requiring it to address new issues of law in this appeal which could have been raised before the Tribunal Member in the costs decision. We have rejected these Grounds of Appeal. However the matters raised by the respondent under this heading, with which we agree, are an additional reason for rejecting those Grounds of appeal. Disposition of the Appeal 1. We have rejected the applicants grounds' of appeal based on errors of law and have refused leave to appeal. 2. We will therefore make orders that : 1. Leave to Appeal is refused. 2. The Appeal is dismissed. Costs 1. In order to conclude this Appeal as efficiently as possible, we requested the parties' representatives to state the basis upon which they sought the costs of the Appeal and to identify the relevant sub-section of s 60(3) of the NCAT Act upon which they relied if they submitted that there were 'special circumstances' present to justify a costs order under s60 of the NCAT Act. 2. The applicants have been unsuccessful in their appeal. They have not submitted that each party should pay their and its costs of the appeal. 3. The respondent's counsel submitted that the special circumstances referred to in s 60(3)(c),(e) and (g) of the NCAT Act were applicable to these Appeal proceedings such as to entitle to the respondent to a costs order in its favour. The matters referred to in those sub-sections are: '(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. We find that the Grounds of Appeal raised issues which may be described as weak and lacking in substance. In particular we are of the view that the applicants' contentions that they had withdrawn their application either expressly or that it was to be understood or inferred that they had done so had little strength and were lacking in substance. We also view the applicants' contention that the Tribunal erred in making costs orders against them once they ceased to be interested persons as having little strength and lacking in substance. 2. By reason of the findings above, we will make an order that: (3) Alexandra Frampton and Peter Frampton must pay The Owners – Strata Plan No 35012 costs of the Appeal, such costs if not agreed to be assessed on the basis set out in the legal costs legislation as defined in Legal Profession Uniform Law Application Act 2014 (NSW) s 3A. ********** 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: 31 October 2019