Lok v Yeo [2021] NSWCATAP 237

Lok v Yeo [2021] NSWCATAP 237

Special circumstances warranted a costs order because the legally represented appellant prosecuted a Stay Application without appropriate regard to the fact that the orders sought could not properly be granted, there had been significant delay making success unlikely, the appeal concerned an interlocutory procedural decision requiring leave and subject to restraints on appellate intervention, and the respondent succeeded in resisting the Stay Application and in the substantive appeal. Applying the usual principle that costs follow the event, the appellant was ordered to pay the respondent's costs of the Stay Application on the ordinary basis.

Jurisdiction
Australia
Judgment Date
06 August 2021
Procedural Posture
Internal Appeal Costs Application in NCAT Appeal Panel Relating to Application for a Stay / Determination on the Papers of the Respondent's Application for Costs of the Stay Application After the Stay Application and Substantive Appeal Had Been Dismissed
Outcome
The respondent's application for costs of the application for a stay was allowed.
Legal Topics
['costs of Application for a Stay' 'special Circumstances for Costs in Ncat' 'internal Appeal Costs' 'stay Pending Appeal' 'transfer of Proceedings to District Court']
['administrative Law' 'civil Procedure' 'costs' 'home Building'] ['costs of Application for a Stay' 'special Circumstances for Costs in Ncat' 'internal Appeal Costs' 'stay Pending Appeal' 'transfer of Proceedings to District Court']

Case Brief

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Procedural Posture

Internal Appeal Costs Application in NCAT Appeal Panel Relating to Application for a Stay / Determination on the Papers of the Respondent's Application for Costs of the Stay Application After the Stay Application and Substantive Appeal Had Been Dismissed

Legal Issues

  1. 1 ["Whether the appellant should pay the respondent's costs of the application for a stay." 'Whether r 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) required application of the first instance costs provisions in r 38(2)(b).' 'Whether special circumstances under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) warranted an award of costs.' 'Whether the Stay Application sought orders that could properly be granted after the transfer order had already been brought into effect.']

Ratio Decidendi

Special circumstances warranted a costs order because the legally represented appellant prosecuted a Stay Application without appropriate regard to the fact that the orders sought could not properly be granted, there had been significant delay making success unlikely, the appeal concerned an interlocutory procedural decision requiring leave and subject to restraints on appellate intervention, and the respondent succeeded in resisting the Stay Application and in the substantive appeal. Applying the usual principle that costs follow the event, the appellant was ordered to pay the respondent's costs of the Stay Application on the ordinary basis.

Court Disposition

The respondent's application for costs of the application for a stay was allowed.

Orders

  • ["The appellant shall pay the respondent's costs of the application for a stay on the ordinary basis as agreed or, if not agreed, then assessed on the basis set out in the legal costs legislation as defined in Legal Profession Uniform Law Application Act 2014 (NSW) s 3A."]