Bechara v Kazzi

[2021] NSWCATCD 11

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Bechara v Kazzi [2021] NSWCATCD 11

Hearing dates:

On the papers

Date of orders:

7 May 2021

Decision date:

07 May 2021

Jurisdiction:

Consumer and Commercial Division

Before:

A Lynch, General Member

Decision:

1. A hearing on costs is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.

2. The application for costs is dismissed.

Catchwords:

COSTS – where special circumstances exist

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Cases Cited:

Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120

Category:

Costs

Parties:

Steve Bechara (Applicant)
Youssef Elias Kazzi and Odette Kazzi (Respondents)

Representation:

Brydens Lawyers (Applicant)
Future Legal (Respondent)

File Number(s):

RT20/50201

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. On 17 February 2021, reasons for decision were published in proceedings RT20/50201. The decision is currently the subject of an appeal to the NCAT Appeal Panel. The hearing took place on 15 February 2021.

2. In RT20/50201 orders were made for the landlords, Youssef Elias Kazzi and Odette Kazzi to give possession of the premises to the tenant, Steve Bechara, on or before 22 February 2021. Orders were also made at that time for the landlords and tenant to make written submissions on costs and to address whether special circumstances warrant an order for costs under Section 60 of the Civil and Administrative Tribunal Act 2014 (NSW) (the Act). The parties were also put on notice at that time that it was proposed that a hearing would be dispensed with in accordance with s 50(2) of the Act and the costs application would be determined on the papers.

3. In his application for costs, Mr Bechara’s solicitor, Mr Hanna submits that special circumstances exist in that the landlords unreasonably delayed the hearing by failing to make an application under Section 92 of the Residential Tenancy Act 2010 (NSW) as foreshadowed. Further, the landlord’s did not concede until the hearing that the termination notice was invalid. Therefore the matter was unreasonably prolonged and without reasonable prospects of success pursuant to s 60(3)(b) of the Act.

4. Further, Mr Hanna submits that special circumstances pursuant to s 60(3)(c) exist in that the argument by the landlords that the Apprehended Personal Violence Order did not allow the tenant to reside at the property was untenable.

5. It was also submitted pursuant to s 60(3)(g) that because the respondent engaged legal representation the tenant was required to obtain his own legal representation.

Jurisdiction

6. The Tribunal has jurisdiction to deal with costs pursuant to s 60 of the Act that says:-

Costs

“(1) Each party to proceedings in the Tribunal is to pay the party’s own costs

(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an order for costs.

(3) 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 the Tribunal considers relevant.

…..

Issues

7. The issues to be determined are:

1. Should an order be made dispensing with a hearing, pursuant to Section 50(2) of the NCAT Act?

2. Has Mr Bechara established that there are special circumstances warranting an order for costs in his favour.

Consideration

8. As noted above, in directions made when the substantive proceedings were determined, the parties were given an opportunity to make an application for costs and were ordered to file and serve submissions in relation to any such application. They were put on notice that, subject to their submissions, I intended to determine costs on the papers.

9. Section 50 of the NCAT Act relevantly provided:-

When hearings are required

(1)   A hearing is required for proceedings in the Tribunal except:

(c)   If the Tribunal makes an order under this section dispensing with a hearing, or

……

(2)   The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3)   The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:

(a)   Afforded the parties an opportunity to make submissions about the proposed order, and

(a)   taken any such submissions into account.

(4)   The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

….

10. The parties have had an opportunity to make submissions about the proposed order. The applicant provided submissions dated 4 March 2021. No submissions have been received from the respondent. The matter is determined on the papers in accordance with the Act.

11. In Megerditchian v. Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11], the Appeal Panel cited with approval the meaning of the expression “special circumstances” that had been given to the same expression in the former Section 88 of the Administrative Decisions Tribunal Act1997 (NSW) by the Court of Appeal in Cripps v. G & M Mawson [2006] NSWCA, per Santow JA at [60], Mason P and Brownie AJA agreeing. That is, special circumstances are “circumstances that are out of the ordinary” but the circumstances do not have to be “extraordinary or exceptional.”

12. The application was first listed on 7 December 2020 and it was adjourned at the request of the tenant on that occasion and then subsequently listed for a final hearing. The matter proceeded at the final hearing and although an adjournment was requested at that time by the respondent’s landlord, the matter proceeded. Despite the cross application not being lodged as foreshadowed by the landlords, this did not result in any delay in determination of the matter. I find there is no evidence of any unreasonable delay in determination of the matter.

13. In regard to the arguments presented by the landlords being manifestly groundless or untenable, given that the initial notice was served by the landlords in person and by parties without legal experience, the invalidity of a termination notice is commonly not established until the hearing of a matter. The withdrawal of the notice at the hearing was with the assistance of legal advice, so in that regard was properly conceded. The argument about the APVO was relevant to the consideration in relation to access and was therefore not a manifestly unreasonable or untenable argument.

14. Finally, in this matter the tenant was involved in the proceedings and in the circumstances was able to argue his case quite effectively. The fact that he felt that he wanted legal assistance does not make the set of circumstances particularly complex or difficult sufficient to entitle him to be awarded costs. The mere fact that the other party had legal representation does not entitle a party to their legal costs.

15. I am not satisfied that Mr Bechara has established special circumstances warranting an order for costs. The application is dismissed accordingly.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.Registrar

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

Decision last updated: 04 August 2021