Chymiak v Fogg (No 2)

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chymiak v Fogg (No 2) [2026] NSWCATAP 281 Hearing dates: On the papers Date of orders: 7 September 2026 Decision date: 07 September 2026 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President D Robertson, Principal Member Decision: (1) The Appeal Panel dispenses with a hearing on the question of costs of the appeal and determines the Appellant’s application for costs on the papers. (2) The Respondent is to pay the Appellant’s costs of the appeal in the sum of $1,143 within 14 days of the date of publication of these orders. Catchwords: COSTS – rr 38 and 38A Civil and Administrative Tribunal Rules 2014 (NSW) – whether rr 38 and 38A apply. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: 203 Castlereagh Street Pty Ltd v Skybloo Holdings Pty Ltd [2017] NSWCATAP 29 Sanna Construction Pty Limited v Kelly (No 2) [2025] NSWCATAP 203 Texts Cited: Nil Category: Costs Parties: Katharine Chymiak (Appellant) Jamie Fogg (Respondent) Representation: Appellant (self-represented) Respondent (self-represented) File Number(s): 2025/00481206 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 13 November 2025 Before: K Mortensen, Senior Member File Number(s): 2025/00074924

REASONS FOR DECISION Background This decision deals with the Appellant’s application for an order that her costs of the appeal be paid by the Respondent. On 30 June 2026 we published orders by which the appeal was upheld and the Appellant’s application was remitted to the Consumer and Commercial Division of the Tribunal for rehearing. We made directions for the Appellant to lodge submissions in support of an application for costs of the appeal and for the Respondent to have the opportunity to lodge submissions in opposition. Both the Appellant and Respondent have filed their submissions. In our directions we stated that the parties should address whether we may make a decision on costs “on the papers” by dispensing with a further hearing. The Appellant’s submissions state that she is content for the question of costs to be determined on the papers. The Respondent’s submissions do not address that issue. Having considered the issues relevant to the Appellant’s application for costs and the parties’ submissions we are satisfied that those issues can be determined adequately in the absence of the parties by considering their written submissions. Accordingly, we make an order under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) dispensing with a hearing. The Appellant was the Applicant in the proceedings at first instance and in her application

sought orders that the Respondent pay to her an amount in excess of $70,000. She was largely unsuccessful in that the orders at first instance did not involve making an order for the amounts she sought as compensation. However, the Appellant did obtain the benefit of a work order. Nevertheless, the Appellant appealed and the result of the appeal was that the appeal was upheld, the orders made at first instance set aside and the Appellant’s application was remitted to the Consumer and Commercial Division for hearing in accordance with the determinations we made in the Appeal Panel decision. In short, the Appellant’s appeal was successful. The Appellant’s submissions on costs of the appeal The Appellant’s submissions rely both on the provisions of s 60 of the NCAT Act and on rr 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (the Rules). In other words, the Appellant seeks to persuade the Appeal Panel that special circumstances exist warranting an award for costs as envisaged by s 60, but the Appellant also seeks to rely on rr 38 and 38A, which provide authority for the Tribunal to award costs even in the absence of special circumstances where the criterion set out in r 38 is established. Section 60 of the NCAT act provides: 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. Rules 38 and 38A of the Rules provide: 38 Costs in Consumer and Commercial Division of the Tribunal (1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if— (a) the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under clause 10(2) of Schedule 4 to the Act in relation to the proceedings, or (b) the amount claimed or in dispute in the proceedings is more than $30,000. 38A Costs in internal appeals (1) This rule applies to an internal appeal lodged on or after 1 January 2016 if the provisions that applied to the determination of costs in the proceedings of the Tribunal at first instance (the first instance costs provisions) differed from those set out in section 60 of the Act because of the operation of— (a) enabling legislation, or (b) the Division Schedule for the Division of the Tribunal concerned, or (c) the procedural rules. (2) Despite section 60 of the Act, the Appeal Panel for

an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal. The costs sought by the Appellant include costs incurred at first instance by the engagement of an expert witness and other costs associated with those first instance proceedings (such as the filing fee). This decision does not involve consideration of whether the Appellant should have an award for costs at first instance. Those costs will be the subject of determination, if an application is made, in the context of the further resolution of the first instance proceedings. We are concerned only with the costs incurred in the appeal. The costs incurred in the appeal claimed by the Appellant in her submissions are the following: (1) Application for a sound recording of the hearing $52 (2) Appeal lodgement fee $130 (3) Legal advice with respect to the appeal $550 (4) Photocopying costs incurred with the Maitland City Council for photocopying documents for the appeal $411 The above claims for costs are supported by receipts. Respondent’s submissions The Respondent’s submissions concern the contention that there are no special circumstances justifying a costs order but otherwise do not explain why a costs order should not be made under r 38A. The Respondent’s submission is that the Appellant’s application for costs

should be dismissed. Consideration In our view r 38A applies to our determination of the Appellant’s costs application. This appeal was lodged after 1 January 2016 and the provisions that applied to the determination of costs in the proceedings at first instance differed from those set out in s 60 of the NCAT Act because of the provisions of r 38. The amount claimed or in dispute in the proceedings (both at first instance and on appeal) is more than $30,000. Accordingly, we may award costs even in the absence of special circumstances. We are of the opinion that we should exercise our discretion to award costs in favour of the Appellant for the reason that the Appellant has incurred the costs identified above in prosecuting the appeal and has been successful in having her appeal upheld. Conversely, we are not of the opinion that the Appellant’s conduct in prosecuting the appeal involved any conduct that might be considered to disentitle her from having a costs order. We are satisfied that the costs claimed by the Appellant in respect of the appeal, as outlined above, were reasonably incurred and reasonable in amount. We consider that it is appropriate to make a fixed costs order, as the amount in issue is not large and the Appellant has provided the necessary documentary evidence to permit us fairly to determine an appropriate sum: Sanna Construction Pty Limited v Kelly (No 2)

[2025] NSWCATAP 203 at [17]-[20]; 203 Castlereagh Street Pty Ltd v Skybloo Holdings Pty Ltd [2017] NSWCATAP 29 at [40]. Therefore, we make the following orders: The Appeal Panel dispenses with a hearing on the question of costs of the appeal and determines the Appellant’s application for costs on the papers. The Respondent is to pay the Appellant’s costs of the appeal in the sum of $1,143 within 14 days of the date of publication of these orders. **** 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 September 2026