Pongrass v Small and Leighton

[2021] NSWCATCD 131

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Pongrass v Small & Leighton [2021] NSWCATCD 131

Hearing dates:

On the papers

Date of orders:

25 November 2021

Decision date:

25 November 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 by the landlord, Mr Pongrass is dismissed.

Catchwords:

COSTS — Civil and Administrative Tribunal Act (2013)

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

Texts Cited:

Nil

Category:

Costs

Parties:

Robert Gabor Pongrass (Applicant)
John Small (First Respondent)
Nicole Leighton (Second Respondent)

Representation:

Solicitor:
Ivy Law Group (Applicant)

Counsel:
J Pokoney (Respondent)

File Number(s):

RT 21/24877

Publication restriction:

Nil

REASONS FOR DECISION

decision

1. On 9 September 2021, reasons for decision were published in proceedings RT21/24877. The hearing took place on 5 August 2021.

2. In that matter orders were made dismissing the landlord’s application. Orders were made at that time for the landlord and tenants 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 Act 2014 (NSW). The parties were also put on notice at that time that it was proposed that a hearing would be dispensed with in accordance with Section 50(2) of the Civil and Administrative Tribunal Act 2013 and the costs application would be determined on the papers.

3. A costs decision was published on 9 September 2021 however at that time the submissions lodged by the landlord were not made available to the Tribunal as they were lodged electronically.

4. As a result, a further determination is made to deal with the landlords submissions in regard to costs taking into account those submissions. The application by the tenants for costs has been dismissed pursuant to the decision made on 9 September 2021.

Costs Application

5. In his application for costs, Mr Pongrass’s solicitor submits that the order for costs should be delayed pending the outcome of an appeal in a related application. There is no appeal, so far as the Tribunal is aware in regard to the decision made in RT 21/24877.   

6. In his application for costs, Mr Pongrass’s solicitor submits that there be no order for costs in favour of the respondents. The application for costs by the tenants has been dismissed pursuant to a decision made on 9 September 2021. The landlord has sought an order for the costs on the basis special circumstances exist in that the tenants unreasonably delayed resolution of the tenancy disputes and rejected reasonable offers to resolve the matter. This unnecessarily prolonged the litigation of the matter pursuant to the circumstances outlined in s 60(3) of the Act and that the nature of the proceedings were difficult and complex.

7. This decision should be read with the previous costs decision in this matter in regard to jurisdiction and the nature of and the complexity of the proceedings.

8. This application was made in the context of significant acrimony between the parties in regard to termination of the tenancy and vacant possession on the sale of the residential premises. These are not matters or circumstances that are unusual before the Tribunal. They do not represent any special difficult set of issues at law and the difficulty arose more as a result of the acrimony between the parties and their failure to co-operate than with any issues in relation to the legal proceedings. Further, the application by the landlord was dismissed. In those circumstances, the Tribunal does not find there are any special circumstances that would justify an order for costs.

9. The application is accordingly dismissed.

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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: 14 February 2022