Mackenzie v Pyika Pty Ltd

[2025] NSWCATCD 61

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Mackenzie v Pyika Pty Ltd [2025] NSWCATCD 61

Hearing dates:

6 June 2025

Date of orders:

27 June 2025

Decision date:

27 June 2025

Jurisdiction:

Consumer and Commercial Division

Before:

JA Rose, Senior Member

Decision:

(1)   By consent of the respondent, the respondent must pay the applicant the sum of $704.48 immediately.

(2)   The balance of the applicant’s claim is dismissed as the Tribunal is not satisfied to the civil standard (being the balance of probabilities) on the material before it that there are grounds for the Tribunal to make the other orders claimed by the applicant.

Catchwords:

CONTRACTS — Formation — Terms of contract

CONTRACTS — Remedies — Liquidated damages — Debt

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Civil Procedure Act 2005 (NSW)

Fair Trading Act 1987 (NSW)

Cases Cited:

Ballard v Multiplex [2012] NSWSC 426

Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81

Equuscorp Pty Ltd v Glengallen Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55

Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120

Nguyen v Cosmopolitan Homes [2008] NSWCA 246

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52

Warner v Hung (No 2) (2011) 297 ALR 56; [2011] FCA 1123

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Peta Mackenzie (Applicant)
Pyika Pty Ltd (Respondent)

Representation:

P Mackenzie, in person (Applicant)
J Gross, director (Respondent)

File Number(s):

2024/394932

Publication restriction:

Nil

REASONS FOR DECISION

Introduction and procedural history

1. This proceeding arises out of an agreement between the applicant and the respondent, for the respondent to provide professional co-hosting services to the applicant in respect of the applicant’s apartment at Kingscliff NSW (the “property”). The services that were to be provided under the agreement included managing the property on online marketplaces, such as Airbnb and booking.com.

2. By the application form that she lodged with the Tribunal on 24 October 2024, the applicant alleges that:

“I engaged [the respondent] to manage my property on Airbnb and I paid [the respondent] 20% commission from each booking to do so. [The respondent is] withholding income earned from my property to the value of $4140 as evidenced in the Airbnb payment summary and my bank statements. I instructed [the respondent] to lodge two claims with Airbnb for damages to my property from guests and I have not received any outcome from claim or monetary settlement from Airbnb insurance.”

The application form described the value of the claim at that stage at $4,987.25 and set out a claim for the following orders:

• Respondent to provide full and frank disclosure of any insurance claims made and the outcome.

• Respondent to pay the applicant all outstanding earnings from cleaning fees from Airbnb and any insurance claim money received.

• Respondent to pay the applicant interest accrued on outstanding earnings owed.

• Respondent to pay the applicant costs associated with this application.

3. The application came before the Tribunal for conciliation and an initial (group list) hearing on 10 December 2024. Conciliation was not successful so the Tribunal listed the application for hearing as a special fixture on a date to be determined by the Registrar. In doing so, the Tribunal identified that there was a preliminary issue to be determined about whether the Tribunal had jurisdiction to hear and determine the matter in circumstances where the applicant is resident in Queensland and the respondent trades from Victoria. The Tribunal therefore made the following directions in the matter (relevantly, my underlining):

4    The applicant Peta Mackenzie, is to lodge with the Tribunal, and give to the other party the documents they rely on by 24 December 2024. Applicant’s documents are to include submissions as to what orders are sought under what legislation, and why the applicant asserts that this Tribunal has jurisdiction to hear and determine the matter given that the contract appears to have been formed in Queensland or Victoria if the legislation relied upon requires a contract formed in NSW.

5    The respondent Pyika Pty Ltd, is to lodge with the Tribunal, and give to the other party the documents they rely on by 14 January 2025.

6    Documents include Witness statements, Expert reports, Colour photographs, Invoices, Quotations, Chronology, Index of the documents, agency agreement, service agreement, any separate terms and conditions and Rent ledger as applicable and any other documents to be relied upon. Evidence of any witness is to be in a signed and witnessed statement. Any witness is to be available to give evidence at the hearing.

…

8    Leave granted to the applicant to amend the claimed amount to $5812.25.

4. Both parties lodged documents in substantial compliance with those directions, albeit a few weeks late – the applicant, on 6 February 2025 and the respondent, on 12 and 27 February 2025.

The hearing

5. The matter return for hearing by me today, with both parties appearing by telephone or audio-video link. The applicant appeared in person while the respondent was represented by its director, Ms Gross.

6. The hearing proceeded in the usual manner. Both parties were given reasonable opportunities to present the evidence that they had lodged in accordance with the Tribunal’s directions. They were also given the opportunity to question the other party on its evidence, which they both took up. Both parties were also given reasonable opportunities to present their arguments to the Tribunal and to respond to the arguments made by the other party. I am therefore satisfied that both parties received adequate procedural fairness.

7. It was common ground between the parties that there was an agreement between them to co-host the Kingscliff property for short-term accommodation on Airbnb and booking.com. However the parties did not agree on what the terms of that agreement were – particularly in regard to the applicant’s claim that the contract required the respondent to reimburse her for the fees she had incurred in cleaning the property after each letting. This was a significant issue in the course of the hearing.

8. For the reasons set out below, I have decided that the applicant has only succeeded on her claim for the $704.48 that the respondent conceded. The balance of the applicant’s claim has failed, and must be dismissed.

The evidence

9. The applicant relied on the bundle of documents that she had lodged with the Tribunal on 6 February (exhibit A1). The respondent did not object to any of those documents being used in the proceeding.

10. The respondent similarly relied on the bundles of documents that he had lodged with the Tribunal on 12 and 27 February (exhibits R1 and R2, respectively). The applicant also did not object to any of those documents there being used as evidence in the proceeding.

11. Both the applicant and Ms Gross gave sworn oral testimony at the hearing.

The parties’ arguments

12. The applicant acknowledged at the start of the hearing that her claims in respect of the insurance issues had been satisfied by correspondence between the parties, and confirmed that the orders she sought at the hearing were limited to:

1. that the respondent pay her $5,659, which she said was the full cleaning fee owing to her under the agreement;

2. that the respondent pay her interest on that amount; and

3. that the respondent reimburse her for the filing fee paid on her application.

13. The applicant asserted that there was a partly verbal and partly written contract between the parties for the management of the property through the online marketplaces described above. She asserted that the contract included terms whereby:

1. the respondent would be paid a commission equal to 20% of the net rental income received from the property, and the applicant would keep 80% of those amounts;

2. the applicant would engage and manage a cleaner to clean the property from time to time;

3. the guests staying at the apartment would pay a cleaning fee in addition to their rental income which would then be paid to the applicant, in full, to refund her for the cleaning costs she has incurred.

She asserts that the respondent has not paid those cleaning fee amounts to her under the contract.

14. In her closing arguments, the applicant sought to expand her case by asserting that the respondent owed the applicant compensation for its failure to abide by the terms of the contract because it had failed to charge cleaning fees to guests on the booking.com platform as she said had been agreed. While the respondent denied that claim, I identified that this claim was outside of the scope of the application that the applicant had made, as set out above. Accordingly that assertion does not form part of the dispute to be determined by the Tribunal in this proceeding.

15. The respondent initially opposed all of the orders sought by the applicant. It asserted that the terms and conditions of the co-hosting agreement between the parties stated that (in summary):

1. Airbnb would collect payments from the guests staying at the property, which it would distribute to the applicant and the respondent in accordance with the agreement of the parties.

2. Airbnb would pay 20% of the net rental (accommodation) fees it collected to the respondent, and the remaining 80% to the applicant.

3. Airbnb would also pay all of the cleaning fees it collected directly to the applicant in full, without any deduction in favour of the respondent.

16. The respondent asserted that, because of that arrangement, it has never received any portion of the cleaning fee that was payable to the applicant. That position was ameliorated during the course of the hearing when it was identified on the respondent’s evidence (in exhibit R2) that 20% of the cleaning fee had indeed been paid by Airbnb to the respondent in respect of bookings covering the period between 23 November 2023 and 1 April 2024, totalling $704.48. The respondent agreed to refund that amount to the applicant, however it denied that it was liable to pay any other money to the applicant, including interest or the filing fee.

The preliminary question – jurisdiction

The applicable law

17. Part 6A of the Fair Trading Act 1987 (NSW) (the “FT Act”) seeks to provide for remedies for, and the straightforward resolution of, disputes concerning the supply of goods and services to consumers: s 79B. Division 2 of that Part (comprising sections 79I to 79M) gives the Tribunal jurisdiction to hear and determine consumer claims that are the subject of an application made by a “consumer” under the Division, subject to the limits set out in the Division: s 79J.

18. In addition to limits on the time in which an application can be brought (s 79L) and the subject matter of a consumer claim: s 79M (which excludes solicitors and barrister’s costs), s 79K limits the jurisdiction of the Tribunal to cases where there is a sufficient connection with New South Wales. That section provides (my underlining):

79K Supply or agreement made, or supply intended to be made, in New South Wales

(1)   The Tribunal has jurisdiction to hear and determine a consumer claim only if--

(a)   the goods or services to which the claim relates were supplied in New South Wales, or

(b)   a contract or other agreement to which the claim relates contemplated that the goods or services would be supplied in New South Wales (whether or not they were so supplied), or

(c)   a contract or other agreement to which the claim relates was made in New South Wales (whether or not the goods or services were supplied in New South Wales).

(2)   The Tribunal has such jurisdiction whether or not--

(a)   a contract or other agreement to which the claim relates confers jurisdiction on any other court or tribunal (whether in New South Wales or elsewhere), or

(b)   the rules of private international law require a law other than the law of New South Wales to be applied to the hearing or determination of the claim.

19. “Consumer claim” is defined in s 79E(1), and means (my underlining):

… a claim by a consumer, for one or more of the following remedies, that arises from a supply of goods or services by a supplier to the consumer (whether or not under a contract) or that arises under a contract that is collateral to a contract for the supply of goods or services--

(a)    the payment of a specified sum of money,

(b)    the supply of specified services,

(c)    relief from payment of a specified sum of money,

(d)    the delivery, return or replacement of specified goods or goods of a specified description.

20. Section 79D defines a “consumer” to include a natural person to whom a supplier has supplied, or agreed to supply, goods or services whether or not under a contract, or with whom a supplier has entered into a contract that is collateral to a contract for the supply of goods or services. “Supplier” is simply defined to mean a person who, in the course of carrying on (or purporting to carry on) a business supplies goods or services. “Services” is defined in s 79F(1) to include (save for certain exclusions that do not arise in this case; my underlining):

(a)   the performance of work (including work of a professional nature), whether with or without the supply of goods,

(b)   the provision of gas or electricity or the provision of any other form of energy,

(c)   the provision, or the making available for use, of facilities for amusement, entertainment, recreation or instruction,

(d)   the letting of premises for vacation or recreational purposes,

(e)   the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction,

(f)   the provision of insurance cover,

(g)   the rights or benefits provided, granted or conferred under a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking,

(h)   the provision of credit,

(i)   any other rights (including rights in relation to, and interests in, property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce.

21. By s 79H, a person claiming to be a consumer is to be presumed to be a consumer unless and until the contrary is proved. The onus of proving that a person claiming to be a consumer is not a consumer is on the party who seeks to assert or establish that fact.

Applying the law to this case

22. The applicant asserted that the Tribunal has jurisdiction to hear and determine the claim as a consumer claim under Part 6A because (amongst other things) (1) the subject property is in New South Wales; (2) the rental income the subject of the agreement was generated in New South Wales; and (3) the contract between the parties was entered into in New South Wales. The respondent did not dispute those assertions, and submitted to the jurisdiction of the Tribunal.

23. Having reviewed the evidence and considered the parties’ submissions, I am satisfied that, within the meaning of Part 6A:

1. the applicant is a consumer (including because the contrary has not been asserted or established);

2. the respondent carries on business supplying co-hosting services for short stay accommodation, in conjunction with the owners of properties;

3. those services fall within the definition of “services” in s 79F, including because they include the performance of work and the giving of other rights in trade or commerce;

4. the applicant’s claim is therefore a “consumer claim”: s 79E;

5. the applicant’s claim has a sufficient connection with New South Wales because (amongst other reasons) the contract was made in New South Wales (the applicant was living in New South Wales at the time the contract was made and accepted the respondent’s offer in New South Wales), and the contract contemplated that the respondent’s services would be supplied in New South Wales, in connection with a property that is located in New South Wales: s 79K.

24. I am also satisfied that the limitations on the Tribunal’s jurisdiction in ss 79L and 79M do not apply. I am therefore satisfied that the Tribunal has jurisdiction to hear and determine the applicant’s claim – to which I now turn.

The applicable law

25. It is well established that assessment of the formation of a contract and the terms of the contract is performed objectively (that is, from the perspective of a reasonable person in the position of each of the respective parties), rather than being based on the subjective views of the parties as to what they thought was the agreement Equuscorp Pty Ltd v Glengallen Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55 at [34]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 (“Toll”) at [38]. In Toll, the High Court said at [40] (my underlining):

This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.

26. To enforce a breach of a contractual term, the applicant party typically needs to persuade the court to the civil standard (that is, the balance of probabilities) of (a) the existence and relevant terms of the contract; (b) the events said to constitute a breach of those terms; and, (c) if compensation is claimed, the compensation that is required to put the applicant back into the position that he or she would have been if the breach had not occurred. Where the contract provides for the payment of money, the amount that is proved to be payable but unpaid can be claimed as liquidated damages.

27. I have considered the applicants claim in accordance with these principles.

Findings of fact

28. Having weighed and considered the competing evidence lodged or given by both parties, I am satisfied on the balance of probabilities that the facts of the matter are as follows.

29. The applicant is the owner of the residential apartment nominated in the application form.

30. By early October 2023 the applicant had had a conversation with Ms Gross about co-hosting the applicant’s property on Airbnb. In an email dated 11 October 2023, Ms Gross proposed the respondent (her company) as:

“… a tech company … which focuses on property management and automation of manual tasks to empower homeowners to manage their properties independently. [The respondent] distinguishes itself from traditional property management companies by allowing owners to keep their listing on their own Airbnb account, granting them access to Airbnb’s performance dashboard. This dashboard shows you how to listing performance compared to other listings in your area, visualises data such as conversion and occupancy rates and protects you from agency costs.”

The email then proposed that the applicant participate in a “ReadySetHost” session with the respondent’s chief operating officer, Tamir Mazliach, who would guide the applicant through the process of setting up an Airbnb listing. It asked the applicant to undertake various steps before attending that session, including:

•  verified your identity on Airbnb

•  updated your personal information on Airbnb

•  updated your public Airbnb profile

•  added a payout method to your Airbnb profile

•  captured at least 5 pictures of your property …

•  apply for a STRA number

[An STRA number, or Short-Term Rental Accommodation number, is a unique identifier issued by the NSW Government for properties registered for short-term rental in New South Wales. It is a part of the regulation of short-term rentals to ensure properties meet safety and compliance standards. The number must be displayed on online listings to legally operate a short-term rental.]

31. I infer from the evidence that the applicant did not complete those steps because, by 3 November, Mr Mazliach had established himself as the host of the property on the Airbnb platform. The applicant had nevertheless established a customer account on that platform. Mr Mazliach then sent an email to the applicant, inviting her to co-host the property with him. That email probably contained a link to Airbnb’s co-host additional terms of service, which the applicant would have accepted in order to become a co-host on the platform.

32. During this time the parties discussed co-hosting the property under an arrangement where the applicant would receive 80% and the respondent would receive 20% of the net rental income for the property. By an email dated 1 November 2023, Mr Mazliach confirmed that an additional cleaning cost would be included in the charge to the guests. That fee was initially set at $150.

33. On 22 November, the applicant sought to negotiate the respondent’s commission to 16.5%, “as a gesture of good will”, noting that “a few of the local airbnb managers in Kingscliff are taking a 16.5% commission for managing properties on Airbnb”, however the respondent rejected that request.

34. At about this time the applicant arranged for the premises to be cleaned by a local cleaning service, for which she was charged $427.19. Because of that, the parties adjusted the cleaning fee payable by guests on future bookings upwards, to $220.

35. By 23 November 2023 the property started to attract guest bookings on the Airbnb platform. The applicant started to receive payments from Airbnb under that arrangement on 24 November 2023, during the first guest booking. At about the same time, the applicant negotiated with another cleaning service in the Kingscliff area, who quoted to clean the premises for the price of $150 per service, including consumables.

36. In about January 2024, the property was listed on the booking.com site, where further bookings were made for the property.

37. On 7 March, the applicant complained to the respondent that the property “doesn’t appear to be getting many bookings at all and is currently sitting at a 32.3% occupancy rate”, asking the respondent to confirm that it was doing all that it could regarding price, etc, to increase bookings. The respondent replied the same day, noting that the property had a 45.5% occupancy rate for Airbnb, which was 21.4% higher than similar listings in the area. It also noted that every booking.com stay lowered the Airbnb occupancy rate. Also in March 2024, the applicant requested that the respondent reduce its management fee from 20% to 15%. The respondent declined that request on 20 March.

38. On 2 April, the respondent sent the applicant a statement setting out the booking.com reservation payouts for March. The applicant replied the next day, raising a question about whether there had been a double up of payments to her cleaning service on the booking.com bookings, asking the respondent to advise which payments had been paid twice to the service. Stating that it seemed there was a miscommunication, the respondent identified that $825 should be reimbursed to the applicant, which was subsequently paid to her.

39. The parties appear to have ceased hosting the property together in about April 2024, as there are no more listings for the property after that time.

40. On 13 May, the applicant wrote to the respondent, requesting statements for all Airbnb and booking.com income and outgoing expenses. The respondent replied the next day, attaching a spreadsheet of the earnings exported from the Airbnb listing, and noting that cleaning invoices had been sent directly to the applicant. The spreadsheet (which was annexure “B” to a letter also subsequently sent by the respondent’s lawyers to the applicant on 25 November 2024) showed that between 23 November 2023 and 1 April 2024 there were about 20 guest bookings for the property, with each guest paying an accommodation rate, a cleaning fee and (sometimes) an Airbnb guest service fee. Those fees, as set out in the spreadsheet, comprised:

1. “Nightly rate” accommodation fees totalling $13,711.68;

2. cleaning fees totalling $3,920.00; and

3. Airbnb’s “guest service fee”, totalling $1,149.53,

which was a total of $18,781.21. After deduction of Airbnb’s “host service fee”, Airbnb paid the remaining fees collected from those guests to the parties in accordance with the 80%/20% split that had been agreed between them: the applicant received a total of $12,559.63 and the respondent received $3,139.91.

41. In making those payouts Airbnb divided the cleaning fees between the two parties, with the result that the applicant received only 80% of the net cleaning fee after the deduction of Airbnb’s fee ($2,817.91) and the respondent received 20% of the net cleaning fee ($704.48). This was identified in Dorsia Legal’s letter to the applicant dated 25 November 2024, acting for the respondent. The letter went on to assert that the payment of $825 that was made by the respondent in about April 2024 (which, as above, concerned booking.com cleaning fees) had been made “as a gesture of goodwill” and exceeded the amount of the respondent’s commission on the cleaning fees, so that (a) all amounts payable to the applicant in respect of hosting the property had been paid to her; and (b) the applicant had been over-reimbursed by $120.52 in respect to the Airbnb cleaning fee commissions. Dorsa Legal further asserted that the respondent would not pursue recovery of that amount from the applicant if the application was withdrawn (which it was not).

Consideration – applying the law to the facts of the case

The burden of proof

42. As the party seeking relief, the applicant carries the burden of satisfying the Tribunal of the facts that, in the absence of other facts being proved, would justify the grant of that relief on the civil standard. Discussing that burden, Emmett J wrote in Warner v Hung (No 2) (2011) 297 ALR 56; [2011] FCA 1123 at [48] (my underlining):

When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences.

43. In Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [44]-[52], speaking with the concurrence of McColl and Bell JJA, McDougall J similarly expressed the view that proof on the balance of probabilities required a feeling of actual persuasion; that the event in question was more likely than not to have occurred; with “a probability in excess of 50%”. His Honour repeated that view in Ballard v Multiplex [2012] NSWSC 426 at [126].

44. I have applied these principles in determining the applicant’s claim.

The cleaning fees claim

45. As noted above, the parties agree that the applicant would receive 80% of the net rental (accommodation) fees and all of the net cleaning fees collected for the property and that the respondent would receive the remaining 20% of the net rental (accommodation) fees. It is therefore not necessary for me to make any findings on the other terms of the contract between the parties.

46. Despite the assertion made by its solicitors, and as mentioned above, the respondent has agreed to pay $704.48 to the applicant in respect of the share of the net cleaning fees that Airbnb paid to the respondent in the period between November 2023 and April 2024. There should therefore be an order to that effect.

47. The applicant has not produced any evidence that demonstrates that the respondent received any other amounts in respect of cleaning fees that were paid by guests hiring the property on any online platform. Consequently, the applicant has not proved that the respondent has breached the terms of the agreement between them, or that the respondent owes the applicant any further amount under the agreement. The applicant’s claim therefore fails beyond the extent conceded by the respondent.

The interest claim

48. The applicant’s written submissions asserts that the applicant should receive interests on the $5,659 that she had claimed “pursuant to section 60 of the Civil and Administrative Tribunal Act 2013 (NSW)” (the “CAT Act”).

49. Contrary to the applicant’s submissions, s 60 of the CAT Act does not allow the Tribunal to award interest on unpaid amounts as part of its monetary orders. Section 60 relates to the parties’ costs of the proceeding, which is relevant to the next part of the claim.

50. There is no provision in the CAT Act that expressly permits the Tribunal to award interest on unpaid amounts for the period before the Tribunal makes its decision. The only express provision relating to interest in the NCAT legislation is clause 39 of the Civil and Administrative Tribunal Rules 2014 (NSW). That clause requires that a claim against another party for the payment or recovery of a debt, demand or damages must first succeed in the Tribunal. Interest is then payable under the clause on the outstanding balance for the time being of money adjudged by the Tribunal to be payable and which is overdue, at the rate that is prescribed for the time being for the purposes of s 101 of the Civil Procedure Act 2005 (NSW) (“Interest after judgment”) .

51. The claim for interest on the amount claimed by the applicant for the period before the date of the Tribunal’s decision therefore also fails.

The filing fee claim

52. Section 60 of the CAT Act, which deals with costs of proceedings in the Tribunal, provides (relevantly):

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

(b)   the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.

53. The filing fee paid by a party to commence a proceeding in the Tribunal is a part of the party’s costs of the proceeding: s 60(5). Consequently, this part of the application falls to be determined under that section.

54. By operation of s 60(1), the starting position is that the applicant on a proceeding must bear his, her or its own costs. Section 60(2) gives the Tribunal a discretion to make an order that another party pay the applicant’s costs, but the Tribunal must first be satisfied that there are special circumstances that warrant an award of costs. “Special circumstances” means circumstances that are out of the ordinary but not necessarily extraordinary or exceptional: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11] referring to Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 per Santow JA at [60].

55. The applicant did not seek to press her claim for the payment of the filing fee at the hearing once the effect of s 60 was explained to the parties. In particular, the applicant did not seek to invoke any of the circumstances listed in s 60(3) in support of her claim for payment of the filing fee.

56. Looking at those criteria in general, I am not satisfied that the circumstances of this case are special, or that they warrant the making of an award of costs. In particular, I am not satisfied that ss 60(3)(a) or (b) apply to the respondent’s defence of the proceeding, as there is no evidence of any relevant delay or disadvantage. The proceedings were not particularly complex. Further, the applicant’s claims have been unsuccessful, save for the small amount that the respondent has conceded.

57. I therefore refuse to make an award in the applicant’s favour for the payment of the filing fee.

Conclusion and orders

58. While the applicant has claimed a much larger amount, the applicant has only succeeded on her claim for the $704.48 that the respondent conceded. The balance of the applicant’s claim has failed.

59. In these circumstances, the Tribunal makes the following orders:

1. By consent of the respondent, the respondent must pay the applicant the sum of $704.48 immediately.

2. The balance of the applicant’s claim is dismissed as the Tribunal is not satisfied to the civil standard (being the balance of probabilities) on the material before it that there are grounds for the Tribunal to make the other orders claimed by the applicant.

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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: 20 August 2025