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The New South Wales Civil and Administrative Tribunal (NCAT) is a tribunal that can hear and make decisions on various matters, ranging from tenancy disputes to guardianship. When a party is successful, the general rule is that each party pays their own ‘costs’ of running their case. This is the money that pays for the party’s legal and court fees. However, this is only a general rule and a party may be able to claim their costs from the other side following an NCAT decision in their favour in certain circumstances. This article looks at these circumstances and when they apply.
What Costs?
Before looking at the circumstances when the tribunal may award a party their costs, it is important to have an understanding of the costs that the tribunal can award. There is a general misconception that if the tribunal makes a costs order, the tribunal will award all costs from the proceedings. This is not the case.
Costs are generally awarded when a party is represented by a lawyer. However, a party who is entitled to costs, whether represented or not, can still claim costs such as:
- filing fees;
- expert witness costs; and
- printing costs.
Recent NCAT cases make it clear that an award of costs is never intended to provide compensation for all loss suffered by a party as a result of conducting NCAT proceedings. Therefore, a party should not expect to be able to claim money for time away from work or travel costs.
When Can the Court Award Costs?
Special Circumstances
The Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) states that each party must pay their own costs, except if the tribunal is satisfied that there are special circumstances. Therefore, awarding costs is not automatic.
There are several factors that the tribunal may take into account when determining whether there are any special circumstances that would warrant an award of costs. These factors include whether a party has:
- acted in a way that has unnecessarily disadvantaged the other party;
- unreasonably caused the case to take longer to resolve;
- brought a case which was hopeless or frivolous;
- failed to cooperate with the tribunal to provide a just, quick and cheap resolution; and
- failed to follow the tribunal’s orders or directions.
A finding of special circumstances generally requires some conduct that is out of the ordinary or grossly unreasonable. Furthermore, the awarding of costs is a discretionary matter of the tribunal. Therefore, the existence of any one of the above factors will not necessarily lead to the tribunal awarding costs.
Other Circumstances
Even if the tribunal does not find any special circumstances, the tribunal may award costs according to the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules). These rules state that costs can be awarded where no special circumstances exist, if the amount of money in dispute is:
- more than $30,000; or
- more than $10,000 but less than $30,000 and one party has caused the other party disadvantage.
Calculation of Costs
Similar to court proceedings, costs are awarded on an ‘as agreed or assessed’ basis. This means the parties can agree on costs, or the costs can be assessed according to the Legal Profession Uniform Law Application Act 2014. The tribunal can also specify the amount of costs that a party must pay.
Applying for Costs
A party can apply for a costs order either:
- when they lodge their application;
- during the various stages leading up to the hearing;
- at the final hearing; or
- immediately after the hearing.
When a party makes an application, the tribunal will ask each party to explain whether or not they should be awarded costs. The tribunal may decide a separate hearing is necessary. The tribunal will then consider the application and decide whether all, some or no costs should be awarded.
Furthermore, a party can claim interest on the costs once the tribunal makes the order.
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