ZKS v ZKT [2019] NSWCATAP 72

ZKS v ZKT [2019] NSWCATAP 72

Although the available material did not justify characterising the appeal as misconceived or impugning the appellant's motives by finding it was brought for a collateral purpose, the appellant's stay application had at best tenuous prospects because he failed to address whether a stay was appropriate to secure the effectiveness of the appeal and gave no explanation for withdrawing the stay application at the eleventh hour. Those factors in combination constituted special circumstances warranting an order that he pay only the Trustee's costs of opposing the stay application.

Jurisdiction
Australia
Judgment Date
29 March 2019
Procedural Posture
Costs Application in Appeal Panel Proceedings Concerning an Application for a Stay of a Decision Under Appeal From a Financial Management Order / Determined on the Papers After the Appellant Withdrew the Appeal and the Appeal Was Dismissed Under S 55(1)(a) of the Civil and Administrative Tribunal Act 2013 (nsw)
Outcome
Costs awarded to the Trustee in part; the appellant was ordered to pay the Trustee's costs of opposing the stay application, as agreed or assessed.
Legal Topics
['special Circumstances for Costs' 'stay of Decision Under Appeal' 'financial Management Order' 'procedural Fairness']
['administrative Law' 'guardianship' 'costs'] ['special Circumstances for Costs' 'stay of Decision Under Appeal' 'financial Management Order' 'procedural Fairness']

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Procedural Posture

Costs Application in Appeal Panel Proceedings Concerning an Application for a Stay of a Decision Under Appeal From a Financial Management Order / Determined on the Papers After the Appellant Withdrew the Appeal and the Appeal Was Dismissed Under S 55(1)(a) of the Civil and Administrative Tribunal Act 2013 (nsw)

Legal Issues

  1. 1 ['Whether special circumstances warranted an award of costs under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW).' 'Whether the appeal was misconceived or brought for a collateral purpose.' "Whether the appellant's stay application had tenuous prospects and was withdrawn at the eleventh hour without explanation, warranting costs limited to the Trustee's opposition to the stay application."]

Ratio Decidendi

Although the available material did not justify characterising the appeal as misconceived or impugning the appellant's motives by finding it was brought for a collateral purpose, the appellant's stay application had at best tenuous prospects because he failed to address whether a stay was appropriate to secure the effectiveness of the appeal and gave no explanation for withdrawing the stay application at the eleventh hour. Those factors in combination constituted special circumstances warranting an order that he pay only the Trustee's costs of opposing the stay application.

Court Disposition

Costs awarded to the Trustee in part; the appellant was ordered to pay the Trustee's costs of opposing the stay application, as agreed or assessed.

Orders

  • ['A hearing on the application for costs is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).' 'The appellant must pay the costs incurred by the Trustee in opposing the application for a stay of the decision under appeal, as agreed or assessed.']