Mendonca v Tonna [2017] NSWCATAP 176

Mendonca v Tonna [2017] NSWCATAP 176

The Appeal Panel held that Dr Mendonca was not denied procedural fairness and that it was open to the Tribunal to find special circumstances warranting costs because her withdrawals, attempted reinstatement of withdrawn proceedings, commencement of a third application relying in part on a stale termination notice, and unsuccessful extension application caused disadvantage to Mr Tonna. However, the Tribunal erred in law by failing to give reasons explaining why costs should be awarded on an indemnity basis rather than on the ordinary basis. Re-exercising the discretion, the Appeal Panel found that although costs were warranted, Dr Mendonca's conduct did not justify indemnity costs, so the...

Jurisdiction
Australia
Judgment Date
21 August 2017
Procedural Posture
Internal Appeal Concerning Costs Orders in Residential Tenancy Proceedings / Appeal From Orders Made on 5 May 2017 in the Consumer and Commercial Division of the Civil and Administrative Tribunal
Outcome
Appeal allowed in part; the indemnity costs orders were varied to ordinary basis costs; appeal otherwise dismissed.
Legal Topics
['internal Appeal' 'adequacy of Reasons' 'procedural Fairness' 'special Circumstances for Costs' 'indemnity Costs' 'ordinary Basis Costs']
['civil Procedure' 'residential Tenancy' 'costs' 'administrative Law'] ['internal Appeal' 'adequacy of Reasons' 'procedural Fairness' 'special Circumstances for Costs' 'indemnity Costs' 'ordinary Basis Costs']

Case Brief

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Procedural Posture

Internal Appeal Concerning Costs Orders in Residential Tenancy Proceedings / Appeal From Orders Made on 5 May 2017 in the Consumer and Commercial Division of the Civil and Administrative Tribunal

Legal Issues

  1. 1 ['Was Dr Mendonca denied procedural fairness in the determination of the costs applications?' 'Did the Tribunal err in finding that special circumstances warranted an order for costs?' 'Did the Tribunal give adequate reasons for ordering costs on an indemnity basis?' 'If the appeal was allowed, what orders should be made?']

Ratio Decidendi

The Appeal Panel held that Dr Mendonca was not denied procedural fairness and that it was open to the Tribunal to find special circumstances warranting costs because her withdrawals, attempted reinstatement of withdrawn proceedings, commencement of a third application relying in part on a stale termination notice, and unsuccessful extension application caused disadvantage to Mr Tonna. However, the Tribunal erred in law by failing to give reasons explaining why costs should be awarded on an indemnity basis rather than on the ordinary basis. Re-exercising the discretion, the Appeal Panel found that although costs were warranted, Dr Mendonca's conduct did not justify indemnity costs, so the...

Court Disposition

Appeal allowed in part; the indemnity costs orders were varied to ordinary basis costs; appeal otherwise dismissed.

Orders

  • ['The appeal is allowed in part.' 'The orders made on 5 May 2017 in RT 16/19949, RT 16/28340 and RT 16/49008 are varied to substitute "on the ordinary basis" for "on an indemnity basis" in orders 1b, 2a and 3a.' 'The appeal is otherwise dismissed.' 'Any application for costs and a submission in support of the...