Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Elwers v The Owners – Strata Plan No. 83379 [2019] NSWCATAP 286 Hearing dates: 5 November 2019 Date of orders: 29 November 2019 Decision date: 29 November 2019 Jurisdiction: Appeal Panel Before: R Hamilton SC, Senior Member D Goldstein, Senior Member Decision: (1) Leave to Appeal is refused. (2) The Appeal is dismissed. (3) David William Elwers must pay The Owners – Strata Plan No. 83379's costs of the Appeal in the sum of $3,130.05. Catchwords: APPEALS – Application for leave to appeal – No question of principle – Costs – Existence of special circumstances – Gross sum costs order Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Legal Profession Uniform Law Application Act 2014 Strata Schemes Management Act 2015 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135 Texts Cited: None cited Category: Principal judgment Parties: Appellant: David William Elwers Respondent: The Owners – Strata Plan No. 83379 Representation: Solicitors: Appellant (Self Represented) Jane Crittenden Lawyers (Respondent) File Number(s): AP 19/39917 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal New South Wales Jurisdiction: Consumer and Commercial Citation: N/A Date of Decision: 6 August 2019 Before: G. Meadows. Senior Member File Number(s): SC 18/47919 REASONS FOR DECISION 1. The appellant seeks leave to appeal against a decision in the Consumer and Commercial division of the Tribunal exercising jurisdiction under the Strata Schemes Management Act 2015. The Tribunal allowed one aspect of his claim which was otherwise dismissed. 2. The Tribunal decision given on 6 August 2019 carefully set out the history of the proceedings at first instance and what occurred at the hearing. As the Tribunal Member explained, the appellant originally claimed 39 orders. After a directions hearing in December 2018 the appellant amended his application to seek four orders only. The orders sought were: '(1) The Tribunal Orders the Respondent, the Owners - Strata Plan No. 83379, pay the Applicants reasonably foreseeable losses suffered as a result of the Respondent's breaches of s106 of the Strata Schemes Management Act 2015 in the following amounts: (a) loss of rent in the amount of $500 per week from 13 March 2018 and ongoing until the common property is repaired by the Respondent. (b) the cost of replacing the damaged carpet in lot. (c) the cost of fixtures and fittings in the Applicant's bathroom. (2) The Respondent is to supply, or make available for inspection, to the Applicant the CCTV log for January 2014 to date for the CCTV camera located in or about the Applicant's property, which are records or documents in the custody or under the control of the Respondent pursuant to s182(3)(j) of the Strata Schemes Management Act 2015. (3) The respondent has breached its duty is under s37 and s106 of the Strata Schemes Management Act 2015 in failing to investigate the water leak in the Applicant's bathroom and failing to respond to the Applicant's email communication. (4) The respondent has breached its own by-laws in not consulting with the owner to secure a payment for outstanding levies. The committee thereby generating unnecessary legal costs. The claim for legal costs to be withdrawn.' The Tribunal decision at first instance 1. The essential background facts in relation to order 1 are referred to by the Tribunal member at [8] – [10] of the decision at first instance. Those paragraphs state that in June 2017 the appellant complained to the respondent of a water leak in his bathroom. In January 2018 the appellant advised the respondent that he was intending to commence work on the water leak in his bathroom on 1 February 2018. He then proceeded to strip the bathroom walls and floor, removed wall and floor tiles, plumbing fixtures and bathroom fixtures and fittings. He also rectified the source of the water leak in the bathroom. The Tribunal decision indicates at [10] – [11] that the appellant has laid a new floor screed ready for tiling, but the bathroom restoration work has not proceeded past that point. 2. In relation to order 1 as sought by the appellant, the appellant alleged that the respondent breached s106 of the Strata Schemes Management Act which requires it to maintain and keep common property in a state of good and serviceable repair. He then claimed as a result of such breach: 1. loss of rent in the amount of $500 per week from 13 March 2018; 2. the cost of replacing the damaged carpet in his lot; 3. the cost of fixtures and fittings in his bathroom. 1. The Tribunal Member accepted the experts' evidence that the water leak in the appellant's bathroom was caused by faulty drainage in common property. The Tribunal Member stated that he did not accept that the respondent was liable for any loss of rent, although his reasons did not specifically explain why. Nonetheless his acceptance of the respondent's expert's evidence that rectification of the water leak or faulty drainage could have been completed in 2 days and that the use of the bath and shower facilities would have been prevented for only 2 days supports such a finding. The Tribunal member also accepted the respondent's expert's evidence that the reason why the appellant's lot was uninhabitable was because bathroom fixtures and fittings had been removed. 2. The Tribunal Member considered the expert reports tendered by the parties and made a finding and order which was partially in the appellant's favour, in connection with damaged carpet namely that: 'The Owners – Strata Plan No. 83379 is to reimburse the reasonable costs of replacing damaged carpet in the cupboard of the bedroom adjacent to the bathroom in Lot 3.' 1. The Tribunal Member rejected the appellant's claim for the cost of fixtures and fittings in his bathroom on the basis that it was the appellant himself who removed them. 2. Order 2 was dismissed by reason of the Tribunal Member making a finding of fact that on the evidence: 'there are no relevant recordings available and there is no relevant log or other material to be provided.' 1. Order 3 as sought by the appellant was subject to an agreement between the parties in a directions hearing that the respondent would arrange for a suitably qualified contractor to inspect the bathroom and report on the leak. 2. The Tribunal Member found that the respondent had complied with the consent agreement and discharged order 3. 3. As regards order 4, the Tribunal Member found that that the background facts related to recovery proceedings taken by the respondent against the appellant in the Local Court and that the Tribunal did not have the jurisdiction to make orders relating to legal costs in the Local Court. The basis of the Appeal 1. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel stated at [12]: 'In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. 1. We have adopted the approach of looking at the appellant's grounds of appeal generally in order to ascertain the basis of his appeal. 2. Attachment A to the Notice of Appeal challenges order 2 made by the Tribunal Member that: 'The application is otherwise dismissed' 1. However in the section of the Notice of Appeal which asks what order the Appeal Panel should make, the appellant states that he seeks the original orders sought in order 1. 2. Following the approach stated in Prendergast and looking at the Appellant's Notice of Appeal and Attachment A thereto generally, we conclude that the appellant does not appeal against the Tribunal's findings in connection with orders 2, 3 or 4 as sought by him. We will proceed on the basis that the appellant seeks leave to appeal against the Tribunal's findings and order in connection with order 1 sought by him. 3. We find that no error of law has been identified by the appellant in his Notice of Appeal. He relies on the same grounds in his notice of appeal in respect of both alleged errors of law and in seeking leave to appeal. Attachment A to the Notice of Appeal indicates that leave to appeal is required and the Grounds upon which leave is sought are that the Tribunal decision was : 1. not fair and equitable; 2. against the weight of evidence; and 1. Leave is also sought on the basis that significant new evidence is now available that was not necessarily available at the time of the hearing. 2. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an appeal panel stated: 'An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal.' 1. The narrow circumstances referred to in Ryan v BKB Motor Vehicle Repairs Pty Ltd are in these appeal proceedings the grounds upon which leave to appeal may be granted as explained in the passages to which we have referred to at [25] below in Collins v Urban. Unfortunately the appellant's submissions in the appeal tend to concentrate on the background facts and circumstances which precipitated the parties falling out which then led to the wide range of disputes and differences referred to in the appellant's application in the Tribunal and the narrowing of his application to the four orders ultimately sought. Internally appealable decisions 1. The decision of the Tribunal below is an internally appealable decision and an appeal can be made from that (other than where there is an error of law where there is an appeal as of right) with the leave of the Appeal Panel on specified 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) Principles to be applied in an application for leave 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 he 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 … Not fair and equitable 1. Attachment A to the appellant's Notice of Appeal states in connection with section 5B which deals with the appellant's Grounds of Appeal, that the decision was not fair and equitable. The appellant's basis for submitting that the decision was not fair and equitable is that he was unrepresented in the proceedings. 2. We do not accept that because the appellant was unrepresented at the hearing at first instance, the decision of the Tribunal was not fair and equitable. 3. S45(1) of the NCAT Act states: 'A party to proceedings in the Tribunal: (a) has the carriage of the party's own case and is not entitled to be represented by any person, and (b) may be represented by another person only if the Tribunal grants leave: (i) for that person to represent the party, or (ii) in the case of representation by an Australian legal practitioner—for a particular or any Australian legal practitioner to represent the party.' 1. While the appellant represented himself in the first instance proceedings, the respondent was legally represented as recorded by the Tribunal Member at [25] where it was stated: 'The owners corporation was represented by Jane Crittenden Lawyers specifically by Mr Prestipino who adopted the sensible course (in my respectful opinion) of being content to allow the Tribunal to follow the procedure referred to in the previous paragraph, although from time to time he felt compelled to object to one or another matter.' 1. In the 'previous paragraph' referred to the Tribunal Member at [24] briefly described the hearing in the following terms: 'The hearing consisted almost entirely of my seeking to draw out and understand Mr Elwers' grievances so as to determine how the provisions of the SSM Act may be applied thereto.' 1. In our opinion the fact that a party is self-represented does not of itself lead to a conclusion that the decision is not fair and equitable. The fact is that under s45(1) of the NCAT Act the primary position is that a party has the carriage of its own case and is not entitled to representation unless leave is granted for third party representation. 2. The appellant makes no assertion that he applied for third party representation and was denied. In addition the appellant makes no other assertion that may be understood to be that he was denied procedural fairness, save for the issue we refer to in the last sentence of [45]. 3. We have had regard to [24] and [25] of the Tribunal Member's decision which indicates to us that the hearing 'consisted almost entirely' of the Tribunal Member seeking to understand the appellant's position in order to ascertain how the Strata Schemes Management Act might be applied to his grievances. Importantly so far as we are concerned, the Tribunal Member recorded that the respondent's legal representative was 'content to allow the Tribunal to follow' that procedure. 4. Given the way in which the hearing proceeded and the respondent's legal representative's acquiescence in the procedure adopted by the Tribunal Member, we reject the appellant's assertion that the decision was not fair and equitable by reason of the fact that he was unrepresented. Leave to appeal on this ground is therefore refused. Against the weight of evidence 1. The appellant's submissions in relation to his application for leave based on this the decision being against the weight of evidence are discursive going to the general background which led to his falling out with the respondent's strata committee, rather than the evidence at the hearing which was relevant to the relief that he was seeking, as narrowed to the four (4) orders referred to. 2. However the appellant raises as a significant factor a 'stop work order' that had been imposed by the Strata Committee of the respondent. 3. At a directions hearing in this appeal on 19 September 2019 the following order was made, among others: '3. The Appellant is to lodge with the Tribunal and provide to the Respondent by 11 October 2019: (a) All the evidence provided to the Tribunal below on which it is intended to rely; (b) The Appellant's written submissions in support of the appeal; and (c) The sound recording of the hearing at first instance, if what happened at the hearing is being relied on and a typed copy of the relevant parts.' 1. The appellant has filed a folder of documents in this appeal which is made up in part of the documents filed in the proceedings at first instance. 2. At page 31 of that bundle is a letter from the respondent's strata manager to the appellant on 30 May 2018. This letter states that a Notice to comply issued on 27 March 2018 regarding the appellant's major works remained in effect. Otherwise we can find no reference a 'stop work order' in the documents filed by the appellant in the proceedings at first instance, nor have we been referred to the relevant document by the appellant. 3. We reject the appellant' submission that the decision was against the weight of evidence because sufficient consideration had not been given to the Strata Committee's stop work order, a document which was not before the Tribunal Member. 4. The appellant also submits that the decision was against the weight of evidence because, we infer, he submits that the Tribunal Member did not give sufficient weight to the respondent's 12 June 2017 email to him. That email was sent in response to an email from the appellant informing the respondent that there was a water leak associated with the bathroom of his unit and which may affect common property. The respondent's email stated to the appellant that he was behind in his levies and if he paid them, then more notice might be given to his complaints (of water leaks). The email also observed that no complaints had been received from the appellant's tenant. 5. The critical part of the email stated: 'All internal costs will be at your expense' 1. The Tribunal Member referred to this email at [8], [12] and [48] of the decision at first instance. At [48] -[50] the Tribunal Member stated: 'I make that finding while being aware that Mr Elwers did at least attempt to advise the owners corporation (through Mr Dowling) that there was a water leak in his bathroom. It was clear from Mr Dowling's unhelpful response and the passage of time that the owners corporation was not inclined to investigate that allegation and if necessary to arrange rectification. In those circumstances it would have or may have been appropriate for Mr Elwers to seek a Tribunal order that the owners corporation perform that function and if necessary fulfil its mandatory requirement under s. 106. With great respect to Mr Elwers I find it was not reasonable for him to undertake that work even if he sincerely and perhaps realistically considered he had the required expertise. The reason for that finding is that it is a matter for the owners corporation to decide extent of the required work and of course the central issue in these proceedings is the dispute between the parties as to what works were required and what damage Mr Elwers may have suffered, being the subject of Order 1.' 1. We reject the appellant's submission that the Tribunal's treatment of the respondent's 12 June 2017 email was inappropriate or that its evidentiary value preponderates so strongly against the conclusion found by the Tribunal Member as regards order 1, that the conclusion was not one that a reasonable tribunal member could reach. As the Tribunal Member observed, the email was unhelpful but did not justify the appellant proceeding with work which was the respondent's responsibility. We agree with his observation. 2. The appellant also states that the Tribunal's findings in [39(2)] and [51] of the decision was against the weight of evidence and that that there was evidence that was capable of negating that part of the respondent's expert's evidence going to his defect rectification methodology and in particular his estimate of 2 days for rectification work. The appellant also states that he was prevented from asking the respondent's expert questions. 3. The appellant attacks the Tribunal Member's finding at [39(1)] of the respondent's expert's opinion that rectification of faulty drainage under the bath in the appellant's lot would have prevented the use of the bath/shower facility for 2 days. This finding was the basis for the finding in [51] of the decision that the appellant: 'need to not have suffered any rental loss, assuming that a tenant would have accepted 2 days of work in the bathroom.' 1. The reason why these findings are said to be against the weight of evidence is submitted to be found in 'original photos' the precise locations and details of which the appellant does not refer to. We have referred to the documents filed by the appellant and the respondent in these appeal proceedings which are said to be those filed by the appellant in the proceedings at first instance. While there are photographs in those documents which show the surface conditions of the bathroom, they are, as stated by the respondent's expert, 'of poor quality'. 2. The inferences that the appellant now seeks to draw from the photographs to which he refers would normally be the province of an expert. There is no expert evidence that provides an opinion to support this submission. Having regard to the photographs, we reject the appellant's submission that they demonstrate that the Tribunal Member's decision was against the weight of evidence. We are of the view that it could not be said that the evidentiary weight of these photographs preponderates so strongly against the Tribunal's finding in [39(1)] that the rectification of the water leak could have been completed in 2 days, that the finding was not one that a reasonable tribunal member could reach. 3. In connection with the appellant stating that he was prevented from asking the respondent's expert questions, on 19 September 2019 at a directions hearing in this appeal the following order was made, among others, in connection with the appellant preparing his case for the appeal: 'The Appellant is to lodge with the Tribunal and provide to the Respondent: The sound recording of the hearing at first instance, if what happened at the hearing is being relied on and a typed copy of the relevant parts.' 1. While the appellant has provided us with a disc of the sound recording of the hearing, he has not provided a typed copy of the relevant parts of the hearing that would establish that he was prevented from asking the respondent's expert relevant questions. We therefore reject any assertion by him that he was denied procedural fairness at the hearing in connection with order 1 as sought by him. 2. The appellant' submissions devote some time addressing the conduct of the Strata Committee of the respondent. However he has not identified the evidence to which he refers and more importantly identified how the evidence to which he refers preponderates so strongly against the Tribunal decision in connection with order 1 that it could be said that no reasonable tribunal member would have arrived at the decision under appeal. 3. For the reasons provided above, we reject the appellant's submission that the Tribunal decision at first instance was against the weight of evidence. Leave to appeal on this ground is refused. Significant new evidence 1. The appellant also seeks leave to appeal because significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 2. The basis for this aspect of the appellant's application for leave to appeal is that work is proposed to be carried out in the future to remove a sand/cement screed that was laid in the bathroom by the appellant in order to assess the slab as regards 'fall' and waterproofing. 3. The appellant proposes that another expert report will be provided which the respondent's expert will be invited to consider. 4. The appellant's proposals are to re-litigate the technical issues that were determined in the proceedings at first instance. This is not a procedure permitted by the appeal structure contained in the NCAT Act sections that we referred to at [20] – [21]. 5. Leave will only be given if the new evidence sought to be adduced has arisen in circumstances that it could not have reasonably been available at the time of the hearing. Clause 12 1(c) of Schedule 4 of the NCAT Act does not allow a party to have regard to the decision at first instance or the evidence that was tendered in the proceedings at first instance and then to obtain new evidence which would address the deficiencies of her/his evidence or to clarify any uncertainty that may have existed in the evidence at first instance. 6. The Appeal Panel authorities make it clear that an appellant must persuade an Appeal Panel in an application for leave to appeal pursuant to Clause 12 1(c) of Schedule 4 of the NCAT Act that the evidence was not objectively speaking, reasonably available at the time the hearing took place. 7. In Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23] – [24] an Appeal Panel said: '23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. 24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).' 1. As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown: 'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.' 1. We find that the evidence that the appellant has referred to is not evidence that has arisen since the hearing, it has been proposed but not obtained, and even if obtained would have been evidence that was reasonably available at the time of the hearing. 2. Leave to appeal is refused on the ground that significant new evidence has arisen (that was not reasonably available at the time of the hearing. Costs 1. The respondent has applied for its costs of the appeal in the event that leave to appeal is refused and the appeal is dismissed, as it submits should be the orders made by the Appeal Panel. 2. We find that s60 of the NCAT Act will apply to the respondent's costs application. Section 60 creates the general rule that each party to proceedings must pay their own costs: s60(1). An Appeal Panel may only order costs "if satisfied that there are special circumstances warranting an award of costs" (emphasis added): s60(2). Section 60(3) sets out a non-exhaustive list of factors that may be considered in deciding whether there are special circumstances warranting an award of costs. The respondent bases its application for costs on s60(3)(c) and (e). Those sub-sections state : '(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,' 1. The term "special circumstances" is not defined by 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. 2. In accordance with orders made at the hearing, the appellant made written submissions in response to the respondent's oral submissions in support of a costs order. 3. The respondent's submissions were that the strength of the grounds that were raised in the appeal were weak and were misconceived or lacking in substance. 4. The appellant's costs submissions are discursive and address issues which were not relevant to the orders he sought in the hearing at first instance. He also addressed sub-paragraphs of s60(3) not relied upon by the respondent such as s60(3)(d) and (f). The appellant has also drawn our attention to s36(1) of the NCAT Act. In our view that section does not serve to relieve the appellant of the consequences of s60(3) (c) and (e). The real issues in the proceedings were those related to the four orders that the appellant quite properly limited his case to, as we have referred to. In our view the Tribunal Member dealt with those issues in accordance with s36(1) of the NCAT Act. 5. Unfortunately the appellant was unable to accept the findings and orders made at first instance. In our view his grounds of appeal were so weak so as to be described as approaching misconceived, but certainly as lacking in substance. In addition the appellant sought to re-agitate in the Appeal background facts and circumstances which had a tenuous connection with the findings and orders made in the decision at first instance. We find that the appellant's approach tended toward seeking to run his case again which as stated in Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 is an impermissible approach, except when permitted by the narrow grounds permitted by schedule 4, cl 12 of the NCAT Act. 6. For the reasons provided, we find that special circumstances exist to justify a costs order in the respondent's favour. 7. The respondent filed an affidavit sworn by its solicitor, Mr Prestipino in the Appeal proceedings in support of a gross sum costs order. The affidavit concerned itself with the costs of the appeal stating that total costs incurred were $4,471.50 (including GST). Annexed to the affidavit was a statement showing the date when work was carried out, the nature of the work and the charge for the work, leading to a total of $4,471.50. Mr Prestipino states that a costs assessor may ultimately conclude that the respondent if successful would recover 70% of its incurred costs. On that basis the respondent seeks a cost order of $3,130.05 in its favour. 8. In Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135 an Appeal Panel considered the circumstances when a gross sum costs order may be made. At [70] the appeal panel stated, as part of an exhaustive discussion of the relevant authorities: 'These principles were referred to by the NSW Court of Appeal in Bechara trading as Bechara and Company v Bates [2016] NSWCA 294, which stated, at [12] to [14]: 12. The power to award a lump-sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at 742-723 [21]-[22]; Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 123.' 1. Applying the principles referred to in the preceding paragraph and having regard to Mr Prestipino's affidavit and the annexure to it, we find that we are able to make a fair gross lump sum costs order as sought by the respondent. We are satisfied with the statement of costs that we have been provided with both as to the detail of the description of work and the amounts charged. We also accept as reasonable that a discount of 30% is appropriate having regard to what a costs assessor may ultimately order on an assessment. In addition we consider it appropriate to make a gross sum costs order in order to spare the parties further expenditure of money and time in the cost assessment process. Such an approach is in our view consistent with the guiding principle in s36(1) of the NCAT Act which is: 'The guiding principle for this 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.' 1. For the reasons provided, we will make a costs order in favour of the respondent in the sum of $3,130.05. Orders 1. Leave to Appeal is refused. 2. The Appeal is dismissed. 3. David William Elwers must pay The Owners – Strata Plan No. 83379's costs of the Appeal in the sum of $3,130.05. ******** 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: 29 November 2019