When a party is successful in a New South Wales Civil and Administrative Tribunal (NCAT) matter, the general rule is that each party pays their own ‘costs’ of running their case. However, there are limited circumstances where a party’s costs will be awarded by NCAT. This article looks at those circumstances and when they will apply.

What is NCAT?

NCAT is a tribunal that can hear and make decisions on various matters. The matters range from tenancy disputes to guardianship, and various consumer matters such as home building disputes.

The purpose of NCAT is to provide both self-represented and legally represented parties with a fast, accessible and cost-effective forum for the resolution of disputes.

When Are Costs Awarded?

Before looking at when NCAT will award costs, it is important to understand the types of costs that parties can claim. ‘Costs’ means a party’s legal costs. This includes the amount a person has been or may be charged for the provision of legal services.

Costs are generally awarded where a party is legally represented. However, an unrepresented legal party is entitled to claim disbursements that they have incurred if they also would have incurred the costs with legal representation. For example:

  • filing fees;
  • expert witness costs; and
  • printing costs.

An award of costs is not intended to provide compensation for any and all loss suffered by a party. Accordingly, a party should not expect to be able to claim for time away from their work, or travel costs such as flights and accommodation.

The NCAT Act

Under the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), the tribunal may award costs in proceedings if it is satisfied that there are special circumstances that warrant this. Parties contemplating NCAT proceedings need to be aware that the awarding of costs is not automatic.

What Are Special Circumstances?

The tribunal can consider a number of factors when determining whether there are special circumstances that warrant an award of costs. Those factors include whether a:

  1. party’s conduct of the case has disadvantaged another party or unreasonably caused the case to take longer to resolve;
  2. party’s case was hopeless, frivolous, vexatious or misconceived;
  3. party has failed to cooperate with the tribunal to provide a just, quick and cheap resolution of the issues in dispute; or
  4. party has failed to follow the tribunals’ orders or directions.

A finding of special circumstances generally requires some conduct that is out of the ordinary or grossly unreasonable. The awarding of costs is at the discretion of the tribunal. So the existence of any one of the above factors will not necessarily lead to the awarding of costs.

The NCAT Rules

Despite the NCAT Act, in the Consumer and Commercial division of NCAT, costs may be awarded under the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules).

In proceedings where there are no special circumstances, NCAT will award costs if:

  1. the amount in dispute is between $10,000 and $30,000, and there is an order in respect of a party causing another party disadvantage; or
  2. the amount in dispute is more than $30,000.

Calculation of Costs

The tribunal will award costs on an ‘as agreed or assessed’ basis. This means that the:

  • parties can agree on costs; or
  • costs can be assessed by the tribunal under the Legal Profession Uniform Law Application Act 2014; or
  • tribunal can specify the cost payable.

Applying for Costs

The times that a party can apply for a costs order are:

  • 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, they must make a submission explaining their position on the issue of costs. The tribunal may decide a separate hearing is necessary. Following this, the tribunal will consider the application and decide to award all, some, or none of the costs.

Key Takeaways

Generally, each party pays their own costs in NCAT proceedings. There are, however, some limited circumstances in which a party can apply for an award of costs. The NCAT Act provides that the tribunal can, on the application of a party to proceedings, make an order that one party pay the other party’s costs in special circumstances.

The NCAT Rules also say that the tribunal can make an order for costs for matters of $30,000 in the Consumer and Commercial Division, even if there are no special circumstances.

This said, an order for costs is at the tribunal’s discretion. If you have any questions about what costs will be awarded by NCAT or NCAT matters in general, contact LegalVision’s litigation lawyers on 1300 544 755 or fill out the form on this page.

Bonnie-Anne Talese
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