Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Titus v Eddington (No 2) [2019] NSWCATAP 287 Hearing dates: On the papers Date of orders: 29 November 2019 Decision date: 29 November 2019 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President J McAteer, Senior Member Decision: (1) The application for an order for costs of the appeal to be paid by the appellants is dismissed. (2) The application concerning costs of the appeal is decided on the papers and a hearing is dispensed with. Catchwords: Costs on appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 Strata Schemes Management Act 2015 Cases Cited: Gaynor v Burns [2015] NSWCATAP 150 at [19] Texts Cited: Nil Category: Principal judgment Parties: Stephen Titus (Appellant) Joanne Titus (Appellant) Beverly Eddington (Respondent) Representation: Counsel: V F Kerr SC (Respondent) Solicitors: Appellants (Self Represented) File Number(s): AP 19/27899 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 17 May 2019 Before: S Thode, Senior Member File Number(s): SC 18/23506 REASONS FOR DECISION 1. This decision concerns the respondent's application for an order that the costs of the appeal be paid by the appellants. The appellants' appeal has been dismissed: see Titus v Eddington [2019] NSWCATAP 247. The decision at first instance concerned the appellants' application for an order reallocating unit entitlements in a strata scheme. That application was unsuccessful and the appeal was also unsuccessful. We have dismissed the appeal but also made directions for the parties to make submissions as to whether we should make an order in favour of the respondent that her costs of the appeal be paid by the appellants. 2. We have also given the parties an opportunity to make submissions as to whether a hearing on the question of costs should be dispensed with. We have decided to dispense with a hearing on costs and this decision is made based on the written submissions of the parties. 3. The respondent relies upon s 60(3) of the Civil & Administrative Tribunal Act NSW 2013 (the Act) and submits that in this appeal there were special circumstances warranting an award of costs. The respondent's submissions may be summarised as follows: 1. For the Tribunal to make an order under s 60(2) of the Act, it is sufficient that circumstances are out of the ordinary. They do not have to be extraordinary or exceptional (see Gaynor v Burns [2015] NSWCATAP 150 at [19]). Special circumstances exist in this appeal. 2. There were several iterations of the Notice of Appeal causing the respondent to incur unnecessary costs in responding. The Notice of Appeal had 49 grounds of appeal, many with sub-grounds. A Reply was filed and then an Amended Notice of Appeal was filed. There was also a further amendment to the Amended Notice of Appeal to the effect that the appellant would seek leave to appeal if any of the grounds set out in the Amended Notice were not considered to be questions of law. 3. The appeal was lacking in substance and had no tenable basis (relying upon s 60(3)(c) and (e)). 4. The appellants were not able to establish in their appeal grounds any error of law, nor a ground involving the requirement for leave. Sections 60(3)(a), (c), (e) and (g) of the Act apply. The Appellants' Submissions 1. The appellants oppose an order for costs being made against them and submit that the appropriate order is that each party should pay its own costs. The appellants' submissions may be summarised as follows: 1. The appellants believed that they had good grounds to appeal and the submissions set out a number of reasons for that belief. Essentially those reasons involve repeating many of the grounds of appeal. 2. The late amendment to the Notice of Appeal by which the appellants sought leave did not unnecessarily disadvantage the respondent. 3. There were tenable bases in fact and law as to the valuation evidence. The proceedings involved complex issues, were not frivolous or vexatious or otherwise misconceived or lacking in substance. The appellants did not engage in deleterious conduct in the conduct of the appeal. Decision 1. The general rule in the Tribunal in respect of costs is described in s 60(1) namely that each party is to pay the party's own costs. However, s 60 also makes provision for the Tribunal to award costs "only if it is satisfied that there are special circumstances warranting an award of costs" (see s 60(2)). Section 60(3) states that in determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the matters set out in subparagraphs (a) to (g) in that subsection. 2. The factual background considered in the decision at first instance and the appeal was relatively complex. It involved a consideration of the evidence of two expert valuers. Although the appellants failed on all grounds it does not, in our view, follow that their submissions on appeal could be reasonably described as misconceived or lacking in substance or having no tenable basis. There is no evidence which would justify a conclusion that the appellants unnecessarily disadvantaged the respondent or engaged in proceedings which could be described as frivolous or vexatious. 3. The respondent's case for an order for costs is based upon two aspects. The first is that the grounds of appeal were numerous and the amendments caused the respondent to incur additional expense. The second aspect was that the appellants failed on all grounds. As to the first aspect, we are of the opinion that overall the appeal was conducted within a reasonable timeframe and was not unreasonably diverted into unnecessary additional work by reason of the amendments to the grounds of appeal. As to the second aspect, we are of the opinion that notwithstanding the complexity of the matter the appeal proceeded in a relatively efficient and timely manner. 4. Previous decisions of the Tribunal have determined that special circumstances are those which can be described as out of the ordinary but not extraordinary or exceptional (see Gaynor v Burns). We are of the opinion that this appeal cannot be described as out of the ordinary and that therefore special circumstances do not exist. Even if this appeal could be said to involve special circumstances we would not be inclined to exercise the discretion to hold that those circumstances warrant an award of costs. This is because, in the circumstances of this matter involving complex considerations of competing expert evidence, it would be antithetical to the principle described in s 60(1) to make an award of costs and would also be somewhat inconsistent with the notion that the Tribunal should be accessible. 5. In these circumstances, we do not propose to make an order awarding costs with the intent that each party should pay their own costs and will dismiss the costs application. Orders 1. The formal orders are: 1. The application for an order for costs of the appeal to be paid by the appellants is dismissed. 2. The application concerning costs of the appeal is decided on the papers and a hearing is dispensed with. ********** 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