Often at the conclusion of legal proceedings, a Court or Tribunal usually determines the question of who is entitled to their "costs". Costs refer to the legal expenses incurred by each party to a proceeding and includes disbursements such as such as filing and expert fees. 

The general common law position is that the unsuccessful party is ordered to pay part of the costs of the successful party.

The starting position in the New South Wales Civil and Administrative Tribunal (NCAT) is different.

Section 60(1) of the Civil and Administrative Tribunal Act 2013  (NSW) (the Act), states that each party to a proceeding, is to pay their own costs, regardless of the outcome as a general rule. However, there are circumstances where this position can be changed.

Special Circumstances 

NCAT has the discretion to consider the existence of any special circumstances which may warrant making an order for costs in favour of a party.

In determining whether there are special circumstances, NCAT may have regard to the following:

  • whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceeding;
  • whether a party has been responsible for unreasonably prolonging the time taken to ?nalise a proceeding;
  • the relative strengths of the claims made by each of the parties, including whether the claim had a tenable basis in fact or law;
  • the nature and complexity of proceedings;
  • whether the proceedings were frivolous or vexatious;
  • whether a party has refused or failed to comply with the duty imposed by section 36(3); and,
  • any other matter that the tribunal considers relevant. 

Consumer and Commercial Division

Notwithstanding section 60 of the Act, the position is again di?erent if you are in NCAT's Consumer and Commercial Division. Pursuant to rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW), costs may be awarded in the consumer and commercial division, in the absence of any special circumstances.

An order for costs may be made in circumstances where the amount claimed or in dispute in the proceedings is more than $30,000.

Ultimately, if you are a party to a proceeding in NCAT, you will generally be expected to pay your own costs, however there may be scope to seek an order for costs subject to the above.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.