EKC [2024] NSWCATGD 6

EKC [2024] NSWCATGD 6

Special circumstances warranted a costs order because the legally represented costs respondents continued to prosecute guardianship and financial management applications after medical evidence did not support that EKC lacked relevant capacity and after they were put on notice of enduring power of attorney and enduring guardianship instruments. Their failure to seek withdrawal after being aware that there was no evidence EKC lacked capacity unreasonably prolonged the proceedings and unnecessarily disadvantaged EKC, causing him to incur unnecessary legal costs after 16 November 2023. Costs were ordered from that date as agreed or assessed, but the circumstances did not warrant indemnity costs.

Jurisdiction
Australia
Judgment Date
13 May 2024
Procedural Posture
Application for Costs in Guardianship Division Proceedings After Withdrawal and Dismissal of Guardianship and Financial Management Applications / Determined on the Papers
Outcome
Costs application granted in part; hearing dispensed with; costs awarded to EKC for costs incurred after 16 November 2023, as agreed or assessed, but not on an indemnity basis.
Legal Topics
['costs in NCAT Guardianship Division Proceedings' 'special Circumstances Under S 60 of the Civil and Administrative Tribunal Act 2013 (nsw)' 'dispensing With a Hearing' 'guardianship and Financial Management Applications' 'unreasonable Prolongation of Proceedings']
['administrative Law' 'guardianship' 'costs'] ['costs in NCAT Guardianship Division Proceedings' 'special Circumstances Under S 60 of the Civil and Administrative Tribunal Act 2013 (nsw)' 'dispensing With a Hearing' 'guardianship and Financial Management Applications' 'unreasonable Prolongation of Proceedings']

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Procedural Posture

Application for Costs in Guardianship Division Proceedings After Withdrawal and Dismissal of Guardianship and Financial Management Applications / Determined on the Papers

Legal Issues

  1. 1 ['Whether the application for costs could be determined by a single member of the Tribunal.' 'Whether a hearing of the costs application should be dispensed with and the application determined on the papers.' 'Whether there were special circumstances warranting an award of costs under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW).' 'Whether the costs respondents unreasonably prolonged the proceedings or unnecessarily disadvantaged EKC by continuing applications after medical evidence did not support lack of capacity and after being notified of enduring power of attorney and enduring guardianship instruments.' "Whether costs should include counsel's costs and whether costs should be awarded on an indemnity basis."]

Ratio Decidendi

Special circumstances warranted a costs order because the legally represented costs respondents continued to prosecute guardianship and financial management applications after medical evidence did not support that EKC lacked relevant capacity and after they were put on notice of enduring power of attorney and enduring guardianship instruments. Their failure to seek withdrawal after being aware that there was no evidence EKC lacked capacity unreasonably prolonged the proceedings and unnecessarily disadvantaged EKC, causing him to incur unnecessary legal costs after 16 November 2023. Costs were ordered from that date as agreed or assessed, but the circumstances did not warrant indemnity costs.

Court Disposition

Costs application granted in part; hearing dispensed with; costs awarded to EKC for costs incurred after 16 November 2023, as agreed or assessed, but not on an indemnity basis.

Orders

  • ['A hearing of the application for costs is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).' 'DYC, BZB and NBN are to pay to EKC the costs incurred by him after 16 November 2023 in relation to the proceedings set down for a substantive hearing on 4 December 2024 as agreed or...