Nicholls v Fortmann (No 2) [2020] NSWCATAP 84

The appeal lacked substance and did not have a tenable basis in fact or law; special circumstances under s 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW) were established, warranting an award of costs to the respondents.

Parties: Appellant: Melinda Nicholls; First Respondent: Louis Fortmann; Second Respondent: Margaretha Fortmann
Jurisdiction: Australia
Judgment Date: 13 May 2020
Procedural Posture: Appeal / Costs Determination Following Appeal Decision
Outcome: Costs awarded against appellant
Legal Topics: Costs on Appeal, Dividing Fences

Civil Procedure Costs on Appeal Dividing Fences

Case Brief

Summary, issues, holding and outcome

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Parties

Melinda Nicholls

Appellant

Louis Fortmann

First Respondent

Margaretha Fortmann

Second Respondent

Procedural Posture

Appeal / Costs Determination Following Appeal Decision

Legal Issues

1 Whether special circumstances exist warranting an award of costs under s 60(2) NCAT Act
2 Whether the appeal was so weak as to have no tenable basis in fact or law per s 60(3)(c) NCAT Act
3 Whether the appeal was frivolous or lacking in substance per s 60(3)(e) NCAT Act

Ratio Decidendi

Court Disposition

Costs awarded against appellant

Orders

An oral hearing on costs is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).
The appellant is to pay the respondents' costs of the appeal as agreed or assessed in accordance with s 60(4)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).