Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gennacker Pty Ltd t/as Homestead Holiday Park v Bennett [2020] NSWCATAP 51 Hearing dates: On the papers Date of orders: 18 March 2020 Decision date: 18 March 2020 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President D Robertson, Senior Member Decision: (1) A hearing on the question of whether costs of the appeal should be paid by the Appellant to the Respondent is dispensed with. (2) The Respondent's application for an order for costs of the appeal to be paid by the Appellant is refused. Catchwords: COSTS ON APPEAL – special circumstances. Legislation Cited: Civil & Administrative Tribunal Act 2013 (NSW) Cases Cited: Alexander James Pty Ltd v Pozetu Pty Ltd (No 2)[2016]NSWCATAP75 Sylvaney v Cafolan[2016]NSWCATAP36 Texts Cited: None cited Category: Principal judgment Parties: Gennacker Pty Ltd (Appellant) D Bennett & Ors (Respondents) Representation: Counsel: T Glover (Respondent) Solicitor: Tenants Union (Respondents) Applicant (self-represented) File Number(s): AP 19/39824 Publication restriction: Nil Decision under appeal Court or tribunal: Civil & Administrative Tribunal Jurisdiction: Consumer & Commercial Division Citation: None cited Date of Decision: 01 August 2019 Before: W Priestley, General Member File Number(s): RC 19/13840 REASONS FOR DECISION Background 1. This decision concerns an application by the Respondent to the appeal (residents of a Residential Community) for an order that their costs of the appeal be paid by the Appellant (the operator of the Residential Community). On 21 January 2020 we made orders dismissing the appeal and made directions for the Respondent, if it sought costs of the appeal, to file and serve written submissions. The Respondent has filed and served such submissions. The Appellant has also filed and served submissions in response. 2. The directions requested the parties to address the question of whether the Appeal Panel may determine costs on the papers and dispense with a hearing on costs. Both parties agree to the Appeal Panel dispensing with a hearing and deciding costs of the appeal on the papers. Respondent's Submissions 1. Generally speaking Respondents submissions were to the effect that they were put to unnecessary costs and expense by the Appellant's conduct of the appeal, such that there are special circumstances justifying an award of costs. 2. The Respondent's submissions are summarised as follows: 1. Special circumstances are circumstances that are out of the ordinary but do not have to be extraordinary or exceptional. They rely upon s 60 of the Civil & Administrative Tribunal Act 2013 (NSW) (the NCAT Act) which provides that the Tribunal may award costs if there are special circumstances warranting an award of costs. Section 60 (3) lists matters to which the Tribunal may have regard in determining whether there are special circumstances. 2. The Appellants conduct can be considered as falling within s 60(3)(a) which refers to a party having conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings. The Respondent makes reference to the Appellant's conduct prior to the commencement of the proceedings in the Tribunal and to the Appellant's contravention of Tribunal orders made on 1 August 2019. The Respondents also refer to the late service of the Appellant's submissions which were not received until the morning of the hearing of the appeal (14 November 2019). 3. The Respondents rely upon s 60 (3)(b) which refers to whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings. The Respondents refer to the failure of the Appellant to attend a mediation prior to the commencement of the proceedings in the Tribunal and to the Appellant's default in the timetable for filing and serving submissions in the appeal and the appeal bundle. 4. The Respondents rely upon s 60(3)(c), (d) and (e). These subsections refer to 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, to the nature and complexity of the proceedings and to whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance. The Respondents submit that the Appellant prosecuted the appeal in a way that made the proceedings unnecessarily complex having regard to the nature of the issues and the relative strengths of the parties. The Appellant raised matters not considered or raised by the Appellant at first instance. The Appellant also ignored the effect of earlier decisions involving the same parties. The Appellant raised an argument based upon the Corporations Act 2001 (Cth) and its having the effect that the Appellant did not have to comply with New South Wales legislation. 5. The Respondent relied upon s 60(3)(f) which concerns whether a party has refused or failed to comply with the duty imposed by s 36(3) of the NCAT Act. The Respondent submits that the Appellant did not participate in the mediation and failed to comply fully with directions and orders of the Tribunal. 6. The Respondent relied upon s 60(3)(g) which concerns any other matter that the Tribunal considers relevant and, in particular, to a Supreme Court decision involving the same Appellant. Appellant's Submissions 1. The Appellant has provided submissions generally opposing the submissions of the Respondent. There is no need to set them out. Decision 1. The general rule in the Tribunal is that each party is to pay its own costs – s 60(1). The Tribunal may award costs "only if it is satisfied that there are special circumstances warranting an award of costs" (s 60(2)). Section 60(3) provides that, in determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the matters listed in subsections (a) to (g). Some of those subsections have been relied upon by the Respondent and are referred to above. 2. This is not a case to which rule 38 of the Civil & Administrative Tribunal Rules (the Rules) applies and the Respondent correctly submits that the basis for a costs order requires the Appeal Panel to find that there are special circumstances warranting an award of costs. 3. Some of the conduct relied upon by the Respondent in support of the costs application is conduct that predated the application before the Tribunal in the Consumer & Commercial Division. We are of the opinion that in assessing costs of the appeal we should have regard to those circumstances which arise during the course of the appeal and not circumstances arising prior to the filing of the Notice of Appeal. If there are exceptions to this general principle, they are not applicable in this case. The Notice of Appeal was lodged in early September 2019 and the hearing of the appeal took place on 14 November 2019. 4. The Respondent relies in part upon subsection (a) referred to above and seeks to argue that the Appellant conducted the proceedings in a way that unnecessarily disadvantaged the Respondent. We do not accept this submission. Although the Appellant may have defaulted in the timetable there is no evidence of the Respondent being disadvantaged. 5. The Respondent relies upon subsection (b) which concerns whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings. In our view, the appeal proceedings took place and were completed within a reasonable time frame, and there is no evidence of the Appellant unreasonably prolonging the time taken to complete the proceedings. 6. The Respondent relied upon subsections (c), (d) and (e) of s60(3) referred to above. In our view the Appellant raised some issues in the appeal which it may not have raised had it had the benefit of competent legal advice. Some issues were raised on appeal that had not been raised at first instance. In addition, as is apparent from our decision some of the appeal points contained little merit. However, we are of the opinion that the Appellant's conduct could not be described as conduct which involved putting forward arguments that had no tenable basis or submissions that were frivolous, vexatious or otherwise misconceived or lacking in substance. 7. Similarly, the Appellant's conduct referrable to other subsections relied upon by the Respondent (namely subsections (f) and (g)) is insufficient in our view to be characterised as constituting special circumstances. 8. Previous decisions of the Tribunal have stated that special circumstances are those that are out of the ordinary, but which do not have to be exceptional (see for example Alexander James Pty Ltd v Pozetu Pty Ltd (No 2) [2016] NSWCATAP 75 at [13] and Sylvaney v Carolan [2016] NSWCATAP 36 at [81]). In assessing the conduct of the Appellant in this appeal we have had regard to the principles of law stated by the appeal panels in those cases. 9. In our view, although the Appellant raised matters in the appeal which had little or no merit, that did not have the effect of prolonging the appeal or unduly prejudicing the Respondent or creating unnecessary complexity. 10. We note that s 60(2) provides that the Tribunal "may" award costs if it is satisfied that there are special circumstances. Accordingly, a discretion exists, and there is no automatic right to costs by reason of the Tribunal finding that there are special circumstances. In our view, there were no special circumstances in this case of a kind referred to in s 60(3) and further, in our view, even if there were special circumstances, they are not such as to warrant an award of costs. The Appeal Panel makes the following orders: 1. A hearing on the question of whether costs of the appeal should be paid by the Appellant to the Respondent is dispensed with. 2. The Respondent's application for an order for costs of the appeal to be paid by the Appellant is refused. ********** 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: 18 March 2020