Abdel-Messih v Wang [2018] NSWCATAP 185

Abdel-Messih v Wang [2018] NSWCATAP 185

The appellant did not establish special circumstances warranting an award of costs. Because the appeal was resolved by consent, the Appeal Panel did not hear argument or determine the merits, so the appellant could not establish that the respondent had no tenable defence or maintained a manifestly hopeless defence. The appellant did not show reasonable pre-hearing efforts to obtain a consensual resolution, and the Panel could not conclude that the respondent failed to comply with s 36(3) or acted unreasonably. It was therefore inappropriate to order costs, and the costs application was dismissed.

Jurisdiction
Australia
Judgment Date
31 July 2018
Procedural Posture
Costs Application in an Appeal Panel Tenancy Appeal / On the Papers After the Appeal Was Resolved by Consent
Outcome
Appellant's application for costs dismissed; no order as to the costs of the appeal.
Legal Topics
['costs in NCAT Proceedings' 'special Circumstances for Costs' 'proceedings Settled Without Determination' 'appeal Panel Costs Discretion']
['civil and Administrative Tribunal Procedure' 'costs' 'residential Tenancy'] ['costs in NCAT Proceedings' 'special Circumstances for Costs' 'proceedings Settled Without Determination' 'appeal Panel Costs Discretion']

Case Brief

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Procedural Posture

Costs Application in an Appeal Panel Tenancy Appeal / On the Papers After the Appeal Was Resolved by Consent

Legal Issues

  1. 1 ['Whether special circumstances existed under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) warranting an award of costs to the appellant.' 'Whether the respondent had conducted the appeal unreasonably or maintained a defence with no tenable basis so as to justify a costs order.' 'What costs order should be made where proceedings were resolved by consent without a hearing on the merits.']

Ratio Decidendi

The appellant did not establish special circumstances warranting an award of costs. Because the appeal was resolved by consent, the Appeal Panel did not hear argument or determine the merits, so the appellant could not establish that the respondent had no tenable defence or maintained a manifestly hopeless defence. The appellant did not show reasonable pre-hearing efforts to obtain a consensual resolution, and the Panel could not conclude that the respondent failed to comply with s 36(3) or acted unreasonably. It was therefore inappropriate to order costs, and the costs application was dismissed.

Court Disposition

Appellant's application for costs dismissed; no order as to the costs of the appeal.

Orders

  • ["Appellant's application for costs dismissed." 'No order as to the costs of the appeal.']