Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Guo v The Owners – Strata Plan No 70067 (No 2) [2019] NSWCATAP 266 Hearing dates: On the papers Date of orders: 06 November 2019 Decision date: 06 November 2019 Jurisdiction: Appeal Panel Before: G Curtin SC Senior Member S Thode Senior Member Decision: (1) A hearing on costs is dispensed with in accordance with s 50(1)(c) of the Civil and Administrative Tribunal Act 2013. (2) The appellant shall pay the respondent's costs of the appeal on the ordinary basis as agreed or assessed. Catchwords: Costs –special circumstances established Legislation Cited: Civil and Administrative Tribunal Rules 2014 Civil and Administrative Tribunal Act 2013 Cases Cited: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 57, Diaspora Holdings Pty Ltd v Owners SP 68608 [2019] NSWCATAP 250; Texts Cited: None cited Category: Costs Parties: Zhi Jun Guo (Appellant) The Owners – Strata Plan No 70067 (Respondent) Representation: Solicitors Appellant (Self Represented) Sachs Gerace Broome (Respondent) File Number(s): AP 19/06981 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 January 2019 Before: T Simon, Senior Member File Number(s): SC 18/37294 REASONS FOR DECISION 1. This is an application for costs of an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013. The respondent applied for costs after we dismissed the appeal on 30 August 2019. 2. On 30 August 2019, we made the following directions for submissions on costs to be filed and served. (2) If either party desires to make an application for costs: (a) they are to so inform the other party within 14 days of the date of these reasons; (b) the applicant for costs is to lodge with NCAT and serve on the respondent to the costs application any written submissions of no more than five pages on or before 14 days from the date of these reasons; (c) the respondent to any costs application is to lodge with NCAT and serve on the applicant for costs any written submissions of no more than five pages on or before 28 days from the date of these reasons; (d) any reply submissions limited to three pages are to be lodged with NCAT and served on the other party within 35 days of the date of these reasons; (e) both parties are to indicate in their submissions whether they consent to an order dispensing with a hearing of the costs application, and if they do not consent, submissions of no more than one page as to why a hearing should be conducted. 1. We received written submissions from the respondent dated 10 September 2019 and written submissions from the appellant dated 27 September 2019. The respondent's submissions 1. The respondent submits that special circumstances are established which warrant the making of an award of costs of the appeal in its favour in accordance with section 60 of the Civil and Administrative Tribunal Act 2014 (the Act). It is submitted that special circumstances are those that are out of the ordinary, and do not have to be extraordinary or exceptional: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP to 120 at [11]. It is submitted that special circumstances are established for the following reasons. 1. Mr Guo has brought thirteen proceedings in courts and Tribunals and in circumstances where twelve of those proceedings have been unsuccessful the costs spent by the owners corporation have been extremely burdensome. In order to discourage further applications the Appeal Panel should make a costs orders against Mr Guo; 2. Mr Guo filed six large ring binders, the bulk of which was irrelevant to the appeal. The respondent was forced to review those documents in order to respond to the appeal and incurred unnecessary costs. This made the proceedings needlessly complex; 3. Mr Guo's appeal was misconceived and lacking in substance. The appellant raised five grounds of appeal, all of which failed; 4. Mr Guo argued that there was significant new evidence available at the appeal that had not previously been available yet the evidence submitted was clearly available before the hearing; 5. Mr Guo submitted that the decision being appealed was against the weight of evidence but made no relevant or specific submissions in this regard; 6. Mr Guo made unsubstantiated, unfair and incorrect allegations that Mr Elmer Ronquillo lied under oath; 7. Mr Guo filed an expert report as late as 3 April 2019 that was not filed in the proceedings below, ultimately not allowed into evidence on the appeal; 8. At the call over Mr Guo sought leave to issue summonses; 9. In support of the application for the issuing of summonses and the application to adduce fresh evidence Mr Guo tendered a folder containing approximately 125 pages and refused to provide a copy to the owners corporation until ordered to do so. The application, although ultimately successful, wasted the respondent's time reviewing material and arguing the issues at the call over; 10. Mr Guo did not comply with the direction for filing and service of a court book and arranged documents in a "confusing" manner. He also included fresh evidence in his tender bundle that had not been agreed to by the owners corporation. 1. It is submitted that that for these reasons there are special circumstances warranting an order that the appellant pay the respondent's costs of the appeal on the ordinary basis as agreed or assessed. The appellant's submissions 1. The appellant filed submissions dated 27 September 2019. The appellant submits that each party to the appeal should pay its own costs and consents to an order dispensing with a hearing of the costs application. 2. The appellant submits that notwithstanding the dismissal of the appeal the appellant put forward a clearly arguable and 'fact-based' case. It was reasonable for the appellant to refile and re-serve his evidence because it was confirmed to him at the first hearing that the NCAT registry had lost three of five folders filed by the appellant. 3. The respondent was delinquent in filing submissions and in contravention of directions made by Principal Member Rosser on 26 October 2018 the respondent filed two late submissions respectively on 7 and 10 January 2019. 4. It was reasonable of the appellant to obtain fresh evidence in the form of an expert report because evidence was not reasonably available as the defects in Mr Ronquillo's work only emerged a short time before the hearing. As the Appeal Panel did not allow it into evidence, and the reasons for decision made no mention of it, the respondent was not disadvantaged and the submission is irrelevant on the question of costs. 5. The Appeal Panel should disregard any submission that the appellant has filed a number of unsuccessful applications. It is submitted that although ultimately unsuccessful, at least twice the Tribunal and or previous Appeal Panels have found that the appellant's applications were not without merit and that the scheme is indeed not functioning in a satisfactory manner. The applicant submits that he is entitled to bring applications holding the owners corporation to account and submits there has been no finding supporting the owners corporation's contention that the application of the appeal was misconceived or lacking in substance. 6. The respondent agreed to the filing and service of the five page bundle. Jurisdiction 1. It is common ground between the parties that as no dollar amount exceeding $30,000 was claimed in the original proceedings or on appeal, costs may only be awarded in respect of the appeal if special circumstances are found. This is because the proceedings do not fall within Rule 38 of the Civil and Administrative Tribunal Rules 2014 and do not attract the operation of Rule 38A to the costs of the Appeal (see Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 57 (1), (3); Diaspora Holdings Pty Ltd v Owners SP 68608 [2019] NSWCATAP 250.) What legal principles apply to the costs awarded on the basis of special circumstances? 1. Section 60(3) of the NCAT Act states that 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. 1. The inclusion of "any other matter that the Tribunal considers relevant" in the list of factors set out in s 60(3) demonstrates that that list is not an exclusive list. 2. The term "special circumstances" is not defined in the NCAT Act. It has been interpreted to mean circumstances that are out of the ordinary but not necessarily extraordinary or exceptional. The discretion to award costs must be exercised judicially having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]. 3. In Alexander James Pty Ltd v Pozetu Pty Ltd (No. 2) [2016] NSWCATAP 75 at [14] the Appeal Panel stated: 14. An assessment whether circumstances are "special" involves the exercise of a value judgement carried out by way of comparison between what is not "special", and what is special. There are no scientific means by which the former can be ascertained. The evaluative process is necessarily one of impression informed by the particular provisions of section 60, which by sec 60(3)(f) incorporates also a consideration of section 36(3) of the Act. 1. We have had regard to the submissions by the respondent. We must decide whether the factors relied upon by the respondent separately, or in combination, establish special circumstances warranting an award for costs in the appeal. 2. We are of the view that, when taken together with factors that apply specifically to this appeal, the appellant's history of bringing unsuccessful applications in the Tribunal is a factor we may take into account when deciding whether special circumstances have been established. For the reasons that follow we conclude that special circumstances are established that warrant an order for costs. 3. The special circumstances referred to in s 60(3)(c),(e) and (g) of the NCAT Act are 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. For the reasons we published in the substantive appeal proceedings, we are satisfied that the appeal was unmeritorious and lacking in substance. In relation to this, the appellant failed to establish any of the five grounds of appeal. In addition, the appellant made no submissions of substance in support of his application for leave to appeal. Further, we are of the view that the appellant's contention that Mr Ronquillo was not an honest witness in the absence of any proof or supporting documentation was frivolous and misconceived. 2. We also considered that the manner in which the appellant conducted the appeal proceedings caused the respondent to incur unnecessary costs. For example, the appellant sought to issue summonses in the appeal proceedings, which the respondent was required to address. Further, most of the six folders of documents the appellant lodged in the appeal proceedings were irrelevant to the appeal. We accept that the respondent needed to review those documents in order to respond to the appeal and in doing so incurred unnecessary costs. The appellant's conduct of the appeal in this regard made the proceedings unnecessarily complex 3. When these factors are considered in the context of the appellant having a history of bringing applications in the Tribunal which arise from the same facts and which have been overwhelmingly unsuccessful, we conclude that special circumstances warrant an order for costs. The appellant is an experienced litigant in the Tribunal. The number of applications he has brought in the Tribunal and the fact that twelve of thirteen such applications have been unsuccessful distinguish him from the usual self-represented litigant and, when taken with the factors relevant to this appeal in particular are circumstances that are out of the ordinary. As this is not the first appeal that the appellant has lodged, he can be taken to be aware of the seriousness of bringing appeal proceedings and of the need to conduct those proceedings in a manner that does not lead to the other party incurring unnecessary costs. For these reasons we are of the view that the respondent has established special circumstances within the meaning of s 60(3). Orders 1. We make the following orders; 1. A hearing on costs is dispensed with in accordance with s 50(1)(c) of the Civil and Administrative Tribunal Act 2013. 2. The appellant shall pay the respondent's costs of the appeal on the ordinary basis as agreed or assessed. ********** 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: 06 November 2019