Dimitrou v Accardo

[2022] NSWCATCD 1

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Dimitrou v Accardo [2022] NSWCATCD 1

Hearing dates:

On the papers

Date of orders:

8 February 2022

Decision date:

08 February 2022

Jurisdiction:

Consumer and Commercial Division

Before:

G Blake AM SC, Senior Member

Decision:

(1)   A hearing is dispensed with in relation to the respondent’s costs application.

(2)   The respondent’s costs application is dismissed.

Catchwords:

COSTS – Whether there are special circumstances warranting an award of costs

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Retail Leases Act 1994 (NSW)

Cases Cited:

BDK v Department of Education and Communities [2015] NSWCATAP 129

Brodyn Pty Ltd v Owners Corporation Strata Plan 73019 (No 2) [2016] NSWCATAP 224

Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152

CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21

EJE v Western Sydney Local Health District [2021] NSWCATAP 247

eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94

Knox v Bollen; Bollen v Knox [2018] NSWCATAP 106

Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84

ONE.TEL Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270

Rodny v Stricke [2020] NSWCATAP 20

The Owners – Strata Plan No. 76929 v Baldwin [2021] NSWCATAP 420

The Owners – Strata Plan 5319 v Price [2020] NSWCATAP 245

Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135

Texts Cited:

Nil

Category:

Costs

Parties:

John Dimitrou (First Applicant)
Anna Dimitrou (Second Applicant)
Cathy Accardo (Respondent)

Representation:

Respondent (self-represented)

File Number(s):

COM 21/37254

Publication restriction:

Nil

REASONS FOR DECISION

Overview

1. The respondent, Cathy Accardo, has applied for an order that the first applicant, John Dimitrou, and the second applicant, Anna Dimitrou (collectively referred to as the applicants) pay her costs of the proceedings (the respondent’s costs application).

2. I have decided that that the respondent’s costs application should be dismissed.

The factual background

3. On an unknown date, the applicants as the lessors and the respondent as the lessee entered into a retail shop lease within the meaning of the Retail Leases Act 1994 (NSW) (RL Act) for a term of two years commencing on 1 July 2008 with two options to renew for a period of two years in respect of retail shop premises at Petersham (the lease).

4. The respondent remained in possession of the premises under the terms of the lease until 14 November 2020.

5. A dispute arose between the parties as to the payment of rent under the lease.

The history of the proceedings

The Local Court proceedings

6. On 30 June 2021, the applicants as the first and second plaintiffs commenced proceedings 2021/00187393 against the respondent as the defendant in the Local Court of New South Wales at Parramatta (the Local Court proceedings) by filing a statement of claim in which they claimed $22,355.56, being the total of the outstanding rent owing under the lease as at 14 November 2020 less the amount of the rental bond, plus interest (the statement of claim).

7. On 5 August 2021, the respondent’s solicitors Pelosi & Associates sent a letter to the applicants’ solicitor Angelo Andresakis requesting particulars of the statement of claim and asserting that the statement of claim did not disclose a valid cause of action (the 5 August 2021 letter).

8. On 12 August 2021, the respondent filed a notice of motion seeking an order under s 75(1) of the RL Act, or in the alternative an order that the statement of claim be struck out (the notice of motion), and her affidavit sworn on 12 August 2021 (the Accardo affidavit).

9. On 30 August 2021, consent orders were made transferring the Local Court proceedings to the Tribunal and “no orders as to costs” (the 30 August 2021 orders).

The proceedings in the Tribunal

10. On 31 August 2021, the Registry allocated file number COM 21/37254 to the proceedings.

11. On 18 October 2021, the Tribunal at a directions hearing directed the applicants to provide any outstanding particulars requested in the 5 August 2021 letter within seven days, and made procedural directions for the filing of evidence by the applicants and the respondent (the 18 October 2021 orders).

12. On 26 October 2021, the Tribunal at the request of the respondent issued a summons addressed to the proper officer of the Commonwealth Bank requiring the production of specified bank records (the summons) on 19 November 2021.

13. On 27 October 2021, the Tribunal sent a notice of a hearing in a virtual hearing room on 21 December 2021 to the parties.

14. On 19 November 2021, the Registrar extended the time for compliance with the summons to 10 December 2021.

15. On 22 November 2021, the applicants’ solicitor filed a request for withdrawal of application.

16. On 22 November 2021, the Registrar dismissed the proceedings pursuant to s 55(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

17. On 23 November 2021, the respondent filed the respondent’s costs application in which she applied to the Tribunal for an order that the applicants pay her costs of $1,690 of the proceedings under s 60(2) of the NCAT Act.

18. On 1 December 2021, the Tribunal made the following procedural directions (the 1 December 2021 orders) which were sent to the applicants’ solicitor and the respondent by email:

“The applicant withdrew the application, which was dismissed on 22 November 2021. The respondent seeks an order for costs. The following directions are made to facilitate determination of the costs application.

1. The respondent is to provide evidence and submissions on costs to the applicant and the Tribunal by 10 December 2021.

2. The applicant is to provide evidence and submissions on costs to the respondent and the Tribunal by 20 December 2021.

3. The respondent is to provide any evidence and submissions in reply to the applicant and the Tribunal by 24 December 2021.

4. All evidence is to be in the form of a signed witness statement, statutory declaration or affidavit.

5. All documents are to be provided in hard copy (not by email) in an indexed and paginated bundle.

6. The parties are on notice that, subject to the parties' submissions, the Tribunal proposes to dispense with a hearing on costs and determine the application on the basis of the written material provided.”

19. On 24 December 2021, the respondent filed a bundle of documents (the respondent’s bundle of documents).

20. On 13 January 2022, the Registrar sent a notice advising that there was to be a hearing on the papers on 8 February 2022 (the 13 January 2022 notice) to the applicants by post to their solicitor and to their residential address, and to the respondent.

21. The applicants have not provided any evidence and submissions on costs as directed by order 2 of the 1 December 2021 orders.

The issues

22. The following issues arise for determination:

1. whether a hearing in relation to costs should be dispensed with;

2. the costs of the proceedings.

23. Before considering these issues it is appropriate to set out the applicable statutory provisions and the relevant legal principles, and summarise the evidence and the submissions of the respondent.

The applicable statutory provisions

NCAT Act

24. Part 4 Division 1 (ss 35-38) contains provisions dealing with introductory matters relating to the practice and procedure of the Tribunal. Section 36 specifies the guiding principle to be applied to practice and procedure, and relevantly provides:

36 Guiding principle to be applied to practice and procedure

(1) 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.

(2) The Tribunal must seek to give effect to the guiding principle when it—

(a) exercises any power given to it by this Act or the procedural rules, or

(b) interprets any provision of this Act or the procedural rules.

(3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal—

(a) a party to proceedings in the Tribunal,

(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.

…

25. Part 4 Division 4 (ss 49-55) contains provisions dealing with the conduct of proceedings in the Tribunal. Section 50 deals with the circumstances in which hearings are required, and relevantly provides:

50 When hearings are required

…

(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

(b) 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 with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

…

26. Part 4 Division 1 (ss 56-63) contains provisions dealing with determination of issues and proceedings. Section 60 deals with costs, and relevantly provides:

60 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 award of 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 that the Tribunal considers relevant.

(4) If costs are to be awarded by the Tribunal, the Tribunal may—

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.

(5) In this section—

costs includes—

(a) the costs of, or incidental to, proceedings in the Tribunal, and

…

NCAT Rules

27. Rule 35 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) deals with ex parte proceedings in the Consumer and Commercial Division of the Tribunal, and relevantly provides:

35 Ex parte proceedings in Consumer and Commercial Division

(1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal.

(2) Where a hearing is held for proceedings to which this rule applies, the Tribunal may proceed to hear the proceedings in the absence of a party who has failed to attend the hearing if—

(a) the Tribunal is satisfied that notice of the hearing was duly served on the party, or

RL Act

28. Division 3 (ss 70-76A) is headed “Determination of claims by Civil and Administrative Tribunal”. Section 75 deals with the removal of court proceedings to the Tribunal, and relevantly provides:

75 Removal of court proceedings to the Tribunal

(1) If civil proceedings pending in a court involve a retail tenancy dispute, the court must on the application of any party to the proceedings transfer the proceedings (or so much of the proceedings as involve such a dispute) to the Tribunal to be dealt with as a claim under this Division, but only if the court is satisfied that—

(a) the dispute is such as may effectively be dealt with as a claim under this Division and that it is appropriate that the dispute be dealt with by the Tribunal, and

(b) the interests of justice do not require that the matter be dealt with by the court.

…

The relevant legal principles

Costs under s 60(2) of the NCAT Act

29. “Special circumstances” in s 60(2) of the NCAT Act are circumstances that are out of the ordinary; they do not have to be extraordinary or exceptional circumstances: CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32].

30. In considering whether special circumstances exist for the purposes of s 60(2) of the NCAT Act:

1. each case will depend upon on its own particular facts and circumstances: Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152 at [27];

2. the discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48];

3. mere success (or failure) of an application does not give rise to special circumstances: The Owners – Strata Plan 5319 v Price [2020] NSWCATAP 245 at [46];

4. where special circumstances are found to exist, the Tribunal has a discretion to exercise in deciding what, if any, order should be made. Relevant to the exercise of that discretion are those facts upon which the finding of special circumstances was based. However, those findings do not constitute the whole of the relevant matters to be considered in deciding what, if any, order for costs should be made. Rather, the principles applicable to awarding costs generally must also be taken into account: Brodyn Pty Ltd v Owners Corporation Strata Plan 73019 (No 2) [2016] NSWCATAP 224 at [24].

31. As to the factor in s 60(3)(c) of the NCAT Act, in Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135 (Zucker) at [44] the Appeal Panel made the following observations:

“[44] A finding that a claim is “not proved on the balance of probabilities” is not the same as a finding that a claim is “not tenable in fact or law”. They are different concepts. The expression “no tenable basis in fact or law” relates to the common law tests developed and applied in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. For a claim to have no tenable basis in fact or law it must be so obviously untenable that it cannot possibly succeed: General Steel at 130. "Manifestly groundless" or "clearly untenable” are equivalent expressions. In our view, for the purpose of s 60(3)(c), it matters not whether a conclusion that a claim has no tenable basis in fact or law is reached in connection with an application for summary dismissal or after a full hearing on the merits.”

32. As to the factor in s 60(3)(e) of the NCAT Act, in EJE v Western Sydney Local Health District [2021] NSWCATAP 247 at [30] the Appeal Panel made the following observations:

“[30] The terms “lacking in substance” and “misconceived” are also not defined by the NCAT Act. The former has been taken to mean “not reasonably arguable” (Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 at [45]), the latter, a “misunderstanding of legal principle” (Alchin v Rail Corporation NSW [2012] NSWADT 142 at [26]). We adopt those meanings.”

33. As to the factor in s 60(3)(f) of the NCAT Act, in The Owners – Strata Plan No. 76929 v Baldwin [2021] NSWCATAP 420 (Baldwin) at [34] the Appeal Panel made the following observations:

“[34] We agree with the Tribunal below that a failure and even more than one failure to comply with directions of the Tribunal does not have the necessary consequence that there has been a breach of s 36(3) which thereby satisfies s 60(3)(f). …”

34. In Rodny v Stricke [2020] NSWCATAP 20 (Rodny) at [112] the Appeal Panel held that the withdrawal of an application, which had been the subject of lengthy preparation and the incurring of significant costs, shortly before the hearing was a matter that constituted special circumstances warranting an order for costs within s 60(2) of the NCAT Act.

35. In Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84 (Nichols) Payne JA at [25] (Meagher JA at [13] agreeing) considered the principles governing an application for costs in a case which has been resolved without a hearing on the merits:

“[25] The relevant principles governing an application for costs in a case which has been resolved without a hearing on the merits were summarised by McHugh J in Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622 at 624-625; [1997] HCA 6:

“In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order.

In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence litigation. Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd, [6] the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of road and drainage plans.

Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in The South East Queensland Electricity Board v Australian Telecommunications Commission [7] where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare.

If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases.” (footnotes omitted)

36. The circumstances set out in Nichols at [25] in which an award of costs is made in a case which has been resolved without a hearing on the merits may constitute special circumstances within s 60 of the NCAT Act: Price at [39]-[44].

37. In ONE.TEL Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270 (ONE.TEL) at [6] Burchett J observed:

“[6] In my opinion, it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court's discretion otherwise than by an award of costs to the successful party.”

38. The principles in ONE.TEL at [6] have been applied in the Tribunal: Knox v Bollen; Bollen v Knox [2018] NSWCATAP 106 at [47].

The evidence of the respondent

39. The evidence of the respondent in the respondent’s bundle of documents comprises the statement of claim, the notice of motion, the Accardo affidavit, the 5 August 2021 letter, and the following documents:

1. a tax invoice dated 8 September 2021 of Pelosi & Associates for $1.082.00 inclusive of GST (the Pelosi invoice) which includes the following description of work undertaken:

“TO OUR COSTS of acting on your behalf in relation to the above matter, including:

1. Perusing Statement of Claim

2. Perusing various emails and documents sent by you

3. Letter to Plaintiff's solicitor

4. Drafting Notice of Motion

5. Drafting Affidavit

6. Personal attendance on you”

2. a tax invoice dated 3 November 2021 of the NSW Small Business Commissioner for $608.00 inclusive of GST (the mediation invoice);

3. a statutory declaration of the respondent made on 22 December 2021 in which she relevantly states that she did not receive a response to the 5 August 2021 letter, and any evidence and submissions on costs of the applicants as directed by order 2 of the 1 December 2021 orders, and that she served the respondent’s bundle of documents on of the applicants by email (the Accardo declaration);

4. a document setting out overcharges made under the rent review under the lease (referred to as “document 1”);

5. the tenant ledger dated 22 February 2026 for the period from 19 February 2009 to 15 January 2013 (referred to as “document 2”).

The submissions of the respondent

40. The respondent’s costs application relevantly provides:

“I hereby petition the Tribunal for an order for costs of $1690 under 'Special Circumstances' Section 60(3) of the Act.

i) the applicant has conducted their case reversing the burden of proof by not providing adequate evidence placing me at a disadvantage. They also lodged a Statement of Claim at the Parramatta Local Court which has no jurisdiction over this matter causing me unnecessary legal costs to reply, and to seek an order to transfer proceedings to the NSW Civil and Administrative Tribunal pursuant to s 75(1) of the Retail Leases Act 1994. Outlined in my solicitor's reply.

ii) the case should never have been brought against me as specified by my solicitor response: 'NO REASONABLE CAUSE OF ACTION' Weak/ hopeless

iii) the applicant's case misconceived as outlined in my solicitor's reply.

iv) the applicant has NOT complied with Tribunal orders of 18-0ct-2021; 1A. Any outstanding particulars requested under letter of 5 August 2021 are to be answered within 7 days. Placing me at a disadvantage in as to how to reply with my defence.

v) the applicant has now withdrawn their application after unnecessarily causing me legal bills to defend a case that should never have been brought against me had they done due diligence in referring to their records first: such as but not limited to financial records and providing those as evidence if they supported their claim. They instead supplied my tenant ledger at Mediation which I have spent considerable time to reconcile revealing missing deposits, errors and omissions that I conveyed to them during the session. Particulars requested by my solicitor should have been submitted instead.”

41. The submissions of the respondent in the respondent’s bundle of documents comprises a document dated 23 December 2021 in which she relevantly states (the 23 December 2021 submissions):

“1. In the above matter I rely on documents that form the response by my solicitor to the Statement of Claim filed by the Applicant not in accordance to the Retail Leases Act. Had the Applicant filed correctly, I would have defended myself as I did during mediation.

2. I include an example of the applicant not acting in good faith or exercising due diligence or applying a fundamental legal requirement of ensuring they had a legitimate case against me.

Document 1: Table outlining correct CPI versus inflated CPI they demanded I pay contrary to lease term:

LEASE- Item 13, Clause 5 Annexure A, pg 3

LEASE- Item 16, Clause 5.4 Annexure A, pg 4

LEASE- Clause 5. 5.4 Annexure B pg 11

3. Document 2: Tenant Ledger confirming rental increase not in compliance with lease term: LEASE: Item 13, Item 16, Clause 5. 5.4

It shows inflated non-compliant rent amount applied on: 13/7/2010, 23/11/2011, 21/9/2012. This should have been apparent to the solicitor representing the applicant.

4. Had the Applicant and her legal representative verified lawful application of lease terms they would have concluded they had no case against me as no arrears exist using correct lease term CPI. Instead, I incurred unnecessary and unfair legal costs to respond to a non-case filed in the wrong jurisdiction.

5. In the spirit of compromise and quick resolution, if it pleases the Tribunal, I accept to pay my mediation costs. I ask the Tribunal to make an order re my solicitor legal fees ($1082) I have not yet paid this bill. I work in the bridal industry which has been shut down from July - November 2021 under Covid Restrictions and have not had the funds. I would not have needed to engage a solicitor if the Applicant had acted in good faith and applied due diligence by verifying the accuracy of her claim against her financial records and the lease document prior to starting legal proceedings, namely to confirm the lease terms were applied according to law. e.g. incorrect rent was asked sporadically instead of lease stipulated CPI Sydney at Review dates as per lease term . This amounts to my over payment of rent rather than underpayment or arrears as claimed.”

Whether a hearing in relation to costs should be dispensed with

42. I am satisfied by the Accardo declaration that the respondent’s bundle of documents was served on the applicants. I am also satisfied by the 13 January 2022 notice that the applicants had notice of this hearing. In these circumstances, I have decided to exercise the discretion under r 35(2)(a) of the NCAT Rules to proceed with the determination of the respondent’s costs application in the absence of the applicants notwithstanding that the respondent did not provide the respondent’s costs application to the Tribunal and the applicants within the time specified in order 1 of the 1 December 2021 orders.

43. I am satisfied that the issues for determination in relation to the costs of the proceedings can be adequately determined in the absence of the parties by considering the evidence and the submissions of the respondent. Accordingly, I have decided pursuant to s 50(2) of the NCAT Act to make an order dispensing with a hearing in relation to the respondent’s costs application.

The costs of the proceedings

Introduction

44. As the respondent has indicated in the 23 December 2021 submissions that she does not seek payment of the mediation invoice, the only costs for which she is seeking an order is $1,082.00 inclusive of GST charged in the Pelosi invoice. It is clear that the Pelosi invoice relates to work carried out solely in the Local Court proceedings.

45. A threshold issue is whether the costs of the Local Court proceedings have already been determined.

46. If the costs of the Local Court proceedings have not been determined, then the respondent’s application for her costs of the proceedings is pursuant to s 60(2) of the NCAT Act. The determination of this issue involves answering the following two questions:

1. whether there are special circumstances warranting an award of costs in favour of the respondent;

2. if so, whether the discretion should be exercised to award costs.

Whether the costs of the Local Court proceedings have already been determined

47. I am satisfied that the 30 August 2021 orders on their proper interpretation provide that there was to be no order as to the costs of the Local Court proceedings. The agreement of the parties expressed in the 30 August 2021 orders does not does specify whether order 2 applies to the Local Court proceedings as a whole or part of the Local Court proceedings. In circumstances where the Local Court proceedings were being transferred to the Tribunal this order is to be reasonable understood as applying to the Local Court proceedings as a whole and as finalising all costs issues in the Local Court proceedings. This means that the respondent’s costs application must be dismissed because the effect of the 30 August 2021 orders is that she cannot recover the charges in the Pelosi invoice from the applicants.

Whether there are special circumstances warranting an award of costs in favour of the respondent

48. If, contrary to my finding in [47] above, order 2 of the 30 August 2021 orders on its proper interpretation does not apply to the Local Court proceedings as a whole and part of the costs of the Local Court proceedings has not been determined, then it is necessary to consider the respondent’s application for her costs of the proceedings under s 60(2) of the NCAT Act.

49. I am not satisfied that there are special circumstances warranting an award of costs in favour of the respondent within s 60(3) of the NCAT Act. I am not persuaded that the applicants unreasonably commenced the Local Court proceedings. It is not possible to evaluate the correctness of document 1 as it contains an annual rent calculated by reference to a “CPI Sydney Review”, but no indication of the applicable CPI increases. Further, I am unable to determine what circumstances led to the withdrawal of the proceedings by the applicants. I infer that there was a mediation shortly prior to the dismissal of the proceedings. In these circumstances, there is insufficient evidence to determine whether the withdrawal of the proceedings was an effective capitulation or pursuant to a settlement.

50. Having regard to the applicable legal principles, I am not satisfied that the conduct of the applicants falls within any of s 60(3) to (g) of the NCAT Act for the following reasons:

1. as to s 60(3)(a) of the NCAT Act, I do not accept that the applicants unnecessarily disadvantaged the respondent by their failure to reply to the 5 August 2021 letter which sought to protect her against any precipitate default judgment;

2. as to s 60(3)(b) of the NCAT Act, there is no evidence that the applicants prolonged unreasonably the time taken to complete the proceedings;

3. as to s 60(3)(c) and (e) of the NCAT Act, I do not accept the submission of the respondent that the Local Court did not have jurisdiction to hear and determine the Local Court proceedings or the statement of claim did not disclose a reasonably arguable cause of action. While s 75(1) of the RL Act requires a court to transfer proceedings involving a retail tenancy dispute to the Tribunal where two conditions are satisfied, this does not mean that the court does not have jurisdiction. As I have already held at [49] above, document 1 does not establish that the statement of claim did not disclose a reasonably arguable cause of action;

4. as to s 60(3)(d) of the NCAT Act, I do not accept that the proceedings raised any complex issues;

5. as to s 60(3)(f) of the NCAT Act, I do not accept that the failure of the applicants to comply with the 18 October 2021 orders establishes a failure to comply with s 36(3) of the NCAT Act;

6. as to s 60(3)(g) of the NCAT Act, unlike the position in Rodny at [112], the proceedings had not been the subject of lengthy preparation.

If so, whether the discretion should be exercised to award costs

51. As I have not been satisfied of the condition in s 60(2) of the NCAT Act that there are special circumstances warranting an award of costs in favour of the respondent, this question does not arise.

Orders

52. I make the following orders:

1. a hearing is dispensed with in relation to the respondent’s costs application;

2. the respondent’s costs application is dismissed.

**********

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: 11 March 2022