Australia, June 30 -- New South Wales Land and Environment Court issued text of the following judgement on May 30:

1. Following the publication of our decision in Commissioner of Fair Trading v PSMG Pty Ltd [2025] NSWCATAP 34 the respondents have applied for an order that the appellant, the Commissioner for Fair Trading (the administrator) pay the respondent's costs of the proceedings, claiming that there are special circumstances warranting such an order under s 60(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

2. The usual rule in internal appeals from the Administrative and Equal Opportunity Division of the Tribunal is that each party pay their own costs, as is the case in that Division : see rule 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules).

3. The administrator denies that special circumstances exist to justify the Appeal Panel making a costs order on the appeal.

4. The administrator, in response to the costs application, which it says is without merit and is unnecessarily prolonging the proceedings, is seeking an order that the respondents pay the administrator's costs of the costs application, submitting that special circumstances exist to justify the making of such an order under s 60(3) of the NCAT Act.

5. Section 60 provides:

60 Costs

(1) Each party to proceedings in the Tribunal is to pay the party's own costs.

(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following-

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),

(g) any other matter that the Tribunal considers relevant.

(4) If costs are to be awarded by the Tribunal, the Tribunal may-

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.

(5) In this section-

costs includes-

(a) the costs of, or incidental to, proceedings in the Tribunal, and

(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19719d6c4831f1a66046cda4)

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