Reading time: 4 minutes

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.

LegalVision cannot provide legal assistance with this topic. We recommend you contact your local law society.

Webinars

How Franchisors Can Avoid Misleading and Deceptive Conduct

Wednesday 18 May | 11:00 - 11:45am

Online
Ensure your franchise is not accused of misleading and deceptive conduct. Register for our free webinar today.
Register Now

New Kid on the Blockchain: Understanding the Proposed Laws for Crypto, NFT and Blockchain Projects

Wednesday 25 May | 10:00 - 10:45am

Online
If you operate in the crypto space, ensure you understand the Federal Government’s proposed licensing and regulation changes. Register today for our free webinar.
Register Now

How to Expand Your Business Into a Franchise

Thursday 26 May | 11:00 - 11:45am

Online
Drive rapid growth in your business by turning it into a franchise. To learn how, join our free webinar. Register today.
Register Now

Day in Court: What Happens When Your Business Goes to Court

Thursday 2 June | 11:00 - 11:45am

Online
If your business is going to court, then you need to understand the process. Our free webinar will explain.
Register Now

How to Manage a Construction Dispute

Thursday 9 June | 11:00 - 11:45am

Online
Protect your construction firm from disputes. To understand how, join our free webinar.
Register Now

Startup Financing: Venture Debt 101

Thursday 23 June | 11:00 - 11:45am

Online
Learn how venture debt can help take your startup to the next level. Register for our free webinar today.
Register Now

About LegalVision: LegalVision is a commercial law firm that provides businesses with affordable and ongoing legal assistance through our industry-first membership.

By becoming a member, you'll have an experienced legal team ready to answer your questions, draft and review your contracts, and resolve your disputes. All the legal assistance your business needs, for a low monthly fee.

Learn more about our membership

Our Awards

  • 2020 Innovation Award 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Award 2020 Employer of Choice Winner – Australasian Lawyer
  • 2020 Financial Times Award 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year Award 2021 Law Firm of the Year - Australasian Law Awards
  • 2019 Most Innovative Firm - Australasian Lawyer