3 Bears Childcare Centre Pty Limited v Secretary, Department of Education; Hi 5 Childcare Centre Pty Limited v Secretary, Department of Education; Apple Bear Pty Limited v Secretary, Department of Education; GRR v Secretary, Department of Education (No 2) [2025] NSWCATAD 308

Catchwords: COSTS – special circumstances – cost thrown away for hearing by late and repeated requests for an adjournment – adjournment refused and dismissal for non- appearance – repeated informal requests for reinstatement – whether appropriate to award fixed lump sum – whether appropriate to make joint and several costs order Civil and Administrative Tribunal New South Wales Medium Neutral Citation: 3 Bears Childcare Centre Pty Limited v Secretary, Department of Education; Hi 5 Childcare Centre Pty Limited v Secretary, Department of Education; Apple Bear Pty Limited v Secretary, Department of Education; GRR v Secretary, Department of Education (No 2) [2025] NSWCATAD 308 Hearing dates: On the papers Date of orders: 02 December 2025 Decision date: 02 December 2025 Jurisdiction: Administrative and Equal Opportunity Division Before: J Redfern PSM, Senior Member J Herberte, General Member Decision: (1) Pursuant to s 50( 2) of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing on the question of costs is dispensed with. (2) The applicants are to pay the respondent’s costs thrown away, occasioned by the dismissal of the applicants’ applications for review pursuant to s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), in the fixed sum of $17,002.58 jointly and severally. Catchwords: COSTS – special circumstances – cost thrown away for hearing by late and repeated requests for an adjournment – adjournment refused and dismissal for non- appearance – repeated informal requests for reinstatement – whether appropriate to award fixed lump sum – whether appropriate to make joint and several costs order Legislation Cited: Children (Education and Care Services) National Law NSW Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Civil Procedure Act 2005 (NSW) Cases Cited: 203 Castlereagh St Pty Limited v Skybloo Holdings Pty Limited [2017] NSWCATAP 29 3 Bears Childcare Centre Pty Limited v Secretary, Department of Education [2024] NSWCATAD 204 3 Bears Childcare Centre Pty Limited v Secretary, Department of Education [2024] NSWCATAP 218 3 Bears Childcare Centre Pty Limited v Secretary, Department of Education [2025] NSWCATAD 235 BPU v NSW Trustee and Guardian (Costs) [2016] NSWCATAP 87 Global Risk Alliance Group Services Pty Ltd v Harmer (No 2) [2024] NSWSC 234 Hamod v New South Wales [2011] NSWCA 375 Jubian v Clark (No 2) [2016] NSWCATAP 153 Kominda trading as We Paint Pools v Kelleher [2018] NSWCATAP 56 Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84 ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548 Re Minister for Immigration & Ethnic Affairs; Ex Parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 Smith v The Owners – Strata Plan 51017 [2020] NSWCATAP 161 ZXJ v ZXK (No 2) [2023] NSWCATAP 76 Texts Cited: NCAT Guideline 3 – Adjournments (July 2024) Costs Assessment Rules Committee, Guideline: Costs Payable Between Parties Under Court Orders (24 October 2023) Category: Costs Parties: 2024/00222909 3 Bears Childcare Centre Pty Ltd (Applicant) Secretary, Department of Education (Respondent) 2024/00220080 Hi 5 Childcare Centre Pty Ltd (Applicant) Secretary, Department of Education (Respondent) 2024/00223933 Apple Bear Pty Ltd (Applicant) Secretary, Department of Education (Respondent) 2024/00387499 GRR (Applicant) Secretary, Department of Education (Respondent) Representation: 2024/00222909, 2024/00220080, 2024/00223933 Counsel: N Li (Respondent) Solicitors: GRR (Director) (Applicant) Crown Solicitor (Respondent) 2024/00387499 Counsel: N Li (Respondent) Solicitors: Applicant (self-represented) Crown Solicitor (Respondent) File Number(s): 2024/00222909 2024/00220080 2024/00223933 2024/00387499 Publication restriction: The disclosure or publication of the name of the applicant, GRR, is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). REASONS FOR DECISION Overview This an application for costs made by the respondent , the Secretary of the Department of Education , following the dismissal on 9 July 2025 of four separate but related applications for administrative review of decisions made by the respondent under the Children (Education and Care Services) National Law ( NSW ) (the National Law) . The application is made under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) on the grounds that there are special circ umstances to warrant an order for costs. Three of the corporate applicants operated childcare centres in S outh W estern Sydney and the f ourth applicant, GRR, is a director of each of the three corporate entities and the person responsible for the management and control of each company. The proceedings have had an extensive procedur al history . They were listed for hearing on 7, 8 and 9 July 2025 . The proceedings were listed to be heard together. The applicants requested adjournments before the hearing and on each of the hearing days . On the final day of the scheduled hearings, the applicants again requested an adjournment, which was refused. The applicants did not appear at the adjourned final day of the hearing, and the proceedings were dismissed under s 55(1) (c) of the NCAT Act. We provided reasons for the orders made on that day in 3 Bears Childcare Centre Pty Limited v Secretary, Department of Education [2025] NSWC ATAD 235 (the dismissal decision) . We also made directions for the respondent to file and serve any application for costs (including evidence and submissions) on or before 16 July 2025 and for the applicants to file any evidence and submissions in response by 13 August 2025 . The respondent filed an application for the costs “ thrown away ” occasioned by the dismissal of the applications , fixed in the sum of $18,882 and payable by the applicants jointly and severally . The applicants oppose the applica tion . We have dispensed with a hearing of the costs application under s 50(2) of the NCAT Act and have determined this costs application on the paper s . We have determined that the applicants are to pay the respondent ’ s costs thrown away , occasioned by the dismissal of the applicants ’ applications for review pursuant to s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) , in the fixed sum of $17,002.58 joint ly and severa lly . Our reasons follow. Background The costs application relates to proceedings for the administrative review of decisions made by the respondent , the first on 4 June 2024 in relation to the corporate applicants and the second decision made on 20 September 2024 in relation to GRR . In the first decision under review , the respondent cancelled the provider approvals for each of the three corporate applicants to operate the childcare centres effective from 4 July 2024. The corporate applicants requested review of these decisions on 14 , 17 and 18 June 2024 pursuant to s 193 of the National Law. They also made applications for the stay of the decisions. The stay applications were listed before the Tribunal on 2 July 2024 . The Tribunal granted a stay of the decisions until 6pm on 5 July 2024 but otherwise decided it was not appropriate to grant a stay after this date : 3 Bears Childcare Centre Pty Limited v Secretary, Department of Education [2024] NSWCATAD 204 (the stay decision) . The corporate applicants appealed this decision. By decision dated 1 November 2024, the Appeal Panel refused leave to appeal and otherwise dismissed the appeal : 3 Bears Childcare Centre Pty Limited v Secretary, Department of Education [2024] NSWCATAP 218 (the appeal decision) . T he second decision under review relates to a prohibition notice issued to GRR by the respondent prohibiting him from providing education and care to children for an education care centre and, among other things, prohibiting him from being engaged as a supervisor, educator, family day care educator, employee or volunteer and from carrying out any other activity relating to education and care services. On 18 October 2024 , GRR filed an application for review of this decision. The Tribunal made directions on several occasions about the conduct of the proceedings and the filing of evidence . The Tribunal also directed that the proceedings be case managed and heard together. This procedural history is set out in the dismissal decision . Prior to the commencement of the hearing on 7 July 2025, the applicants applied for the hearing to be vacated. We adjourned the proceedings until 8 July 2025 and otherwise rejected the application for an adjournment. At the commencement of the proceedings on 9 July 2025 the applicants made a further application for an adjournment. The respondent opposed the application and requested that the proceedings be dismissed pursuant to s 55(1)(c) or, in the alternative, s 55(1)(d) of the NCAT Act. On 9 July 2025 we made orders refusing the requests for an adjournment, we dismissed each of the proceedings under s 55(1)(c) of the NCAT Act. Our dismissal decision sets out the history of the procedural directions and a summary of the adjournment applications received by the Tribunal before and during the three day hearing. The respondent filed an application for costs , received by the Tribunal on 17 July 2025. The application was accompanied by an affidavit in support of the application. On 21 July 2025, the respondent sought leave to file further evidence and submissions in support of the costs application based on new evidence that had become available about the corporate applicants. On 29 August 2025, the applicant s sent an email to the Re gistry s eeking order s that each party pay its own costs , an extension of time in relation to the timetable on costs and an order that the Tribunal reinstate the proceedings in relation to GR R . The applicants were advised by the Tribunal by email dated 1 September 2025 that the email request was not sufficient to apply for reinstatement of the proceedings and that a party must complete an application for reinstatement form and pay the relevant fee. No such application was received at that time . On 19 September 2025 the Tribunal e xtended time for compliance with the timetable by both parties . T he t ime for compliance for t he applicants to respond to the application for costs was extended to 17 October 2025. The parties w ere directed to address in their submissions whether a hearing on the issue of costs could be dispensed with under s 50(2) of the NCAT Act . The applicants did not provide any evidence or submissions in response by the due date . By email dated 4 November 2025 , the applicants again requested reinsta tement of the proceedings a nd the Tribunal responded by email dated 10 November 2025 , repeating its correspondence of 1 September 2025 . The applicants were referr ed to the NCAT website o n reinstatement for further information. The applicants were further advised that the email of 4 November 2025 would be referred to the Tribunal in relation to the question of costs. The contents of this email are referred to below . Apart from the material referred to above, w e have received no further material from either party in relation to the question of costs . The respondent submits that the costs application should be determined on the papers and consents to an order, pursuant to 50(2) of the NCAT Act , dispensing with a hearing of the application . The applicants did not make any submissions in relation to this issue. Relevant law Section 60(1) of N CAT Act provides that each party to proceedings in the Tribunal is to pay the party ’ s own costs. Despite this, s 6 0(2) provides that 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. Section 6 0(3) provides : 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. Section 60(4) provides that if costs are awarded, the Tribunal may determine by whom and to what extent costs are to be paid and may order cost to be assessed on the basis set out in the legal cost s legislation or on any other basis . Section 6 0(5) provides that costs include the costs of or incidental to proceedings in the Tribunal . Section 36 of the NCAT Act, which sets out the guiding principle to be applied to practice and procedure in the Tribunal , is r elevant to consideration of the matters referred to in s 60(3) . Section 36(1) provide s that the guiding principle for the N CAT Act and the procedural rules is to facilitate the “ just, quick and cheap resolution of the real issues in the proceedings ” . Section 36(2) provides that t he Tribunal must seek to give effect to the guiding principle when it exercises any power given to it by the A ct or the procedural rules or interprets any provision of the A ct or the procedural rules . Se ction 36(3) provides that a party to the proceedings , and an Australian legal practitioner or other party who is representing a party in the proceedings , is under a duty to co - operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the process es of the Tribunal and to comply with directions and orders of the Tribunal . Issues for determination Thus, given the legislative provisions and the submissions of the respondent, the following questions arise for determination: A re there special circumstances and, i f so , do those circumstances warrant an award for costs ? Should the Tribunal make a lump sum costs order and , if so , what order should be made? In the alternative , should the Tribunal make another order in relation to costs, namely, th at cost s be payable as agreed or assessed on an ordinary basis? Should the applicants be jointly and severally liable to pay the respondent ’ s costs? Evidence relating to the application for costs The Tribunal was provided with two affidavits in support of the application by the respondent . The first affidavit of Ms H S teel, senior solicitor in the office of the Crown Solicitor, outline s the procedural history and the events occurring ahead of the hearing on 7 July 2025 and provides details of the costs incurred in relation to the proceedings more generally and , in particular , the costs incurred f or the hearing. In summary, Ms Steel ’ s affidavit includes the following evidence : Following t he unsuccessful stay application , the dismissal of the appeal and the application by GRR for administrative review of the decision to issue him with the prohibition notice, the proceedings came before the Tribunal for directions on 7 November 2024. The c orporate applicants filed a bundle of documents and submissions on 27 November 2024, but the material filed did not include any affidavit made by GRR. The matter was listed for hearing to commence on 24 March 20 2 5. The respondent filed a further bundle of documents to be relied on in the proceedings relating to the decision to issue GRR with prohibition orders on 27 February 2025 (having already filed a bundle of documents in relation to the corporate applicants). The respondent also fi led further affidavit evidence on 27 February and 5 March 2025. It was conceded that t his evidence had been delayed given t he respondent had been directed to file and serv e further evidence and submissions by 29 January 2025 . The proceedings were listed for pre-hearing directions on 10 March 2025. The applicants did not appear before the Tribunal on this date, and the directions were adjourned to 12 March 2025. Again, there was no appearance on behalf of the applicants, and the matter was adj ourned and re- listed for directions on 19 March 2025 . GRR appeared on behalf of the applicants and indicated that the applicants wanted to file material in reply and to engage legal representation. The hearing listed for 25 March 2025 was vacated and listed for seven days commencing 7 July 2025. The Tribunal amended its previous directions made on 29 November 2024 and directed that the applicants were to provide the Tribunal and respondent with any further material, including witness statements and documents and submissions in support of the applications by 30 May 2025 . Following the directions hearing and directions made on 19 March 2025, the applicants did not file and serve any material or submissions as directed. GRR had a telephone conversation with Ms Steel on 3 July 2025, following which she sent him correspondence t o the effect that the matter was listed for hearing commencing on 7 July 2025 and if he did not attend, she was instructed to make an application for the proceedings to be dismissed. Ms Steel had further telephone conversations with GRR about the impending hearing, the detail of which is recorded in file notes attached to her affidavit, and GRR sent medical certificates to her. Those medical certificates were also provided to the Tribunal on the morning of 7 July 2025 and are referred to in our dismissal decision. Ms Steel also attaches other email correspondence with GRR between 7 and 9 July 2025, including, relevantly, email correspondence relating to our decision, together with written reasons dated 8 July 2025, to refuse to grant an adjournment of the hearing the following day. Ms Steel ’ s office has established five files against which time spent can be recorded and to which disbursements can be assigned. There is one file for each of the four proceedings and a lead file against which time relating to all matters can be recorded. The vast majority of time and disbursement spent in relation to the proceedings were initially allocated to the lead file and then split between the files. Total fees in relation to the proceedings amount to approximately $185,000, including legal fees, counsel fees, other disbursements and GST. Ms Steel provides copies of detailed accounts and invoices issued by the office in relation to the costs incurred . The fixed sum claimed i ncludes legal fees of $6 , 208.26, including GST, being 75% of the professional fees for the four invoices issued for the period shortly before and including 7 July to 9 July 2025, being the three days of the hearing. The fixed sum also includes $ 12,474 , including GST, for counsel ’ s fees , representing a 10% reduction . Counsel was briefed at rates which are lower than his commercial rates and well below the hourly and daily rates for junior council as recorded in the Costs Assessment Rules Committee (C A RC) guideline “ Costs Payable Between Parties Under Court Orders ” dated 24 October 2023 (the CARC Guideline) , w hich is available on the Supreme Court of NSW website and is referred to in Ms Steel ’ s affidavit. According to Ms Steel, she sent an email to GRR regarding the respondent ’ s intention to make an application for costs. She attaches a copy of the email sent to GRR on 16 July 2025 at 4:00 pm The second affidavit provided is the affidavit of Mr R Sherrington sworn 21 July 2025. Mr Sherrington is a senior solicitor employed in the office of the Crown Solicitor, who also supervises Ms Steel. Mr Sherrington attaches to his affidavit company searches for t he corporate applicants dated 16, 17 and 18 July 2025. According to the searches from the database of the Australian S ecurities and I nvestments Commission (ASIC) , application s had been lodged to voluntarily deregister Hi 5 Childcare Centre Pty L imited and 3 Bears Child c are Centre Pty L imited on 15 and 17 July 2025 respectively. GRR made the applications in his capacity as director. In the declaration accompanying the application for the registration, GRR declared, amongst other things, that each of the compan ies was not carrying on business, the assets are worth less than $1000, the compan ies ha d no outstanding liabilities and the companies were not part ies to any legal proceedings. The ASIC searches also record that there was strike off action in progress as at 18 July 2025 for these companies . There is no such applicat ion for A pple Bear Pty Limited ; h owever, the search es record that there was a previous application to wind up Apple Bear Pty Limite d, which did not proceed. The ASIC searches also record that GRR is the director, secretary and sole shareholder for each of the corporate applicants. The applicants did not provide any evidence in response but provided submissions by way of emails directed to the Tribunal . Those submissions are outline d below . Submissions of the parties The respondent seeks costs in a fixed sum, payable by the applicants jointly and severally. The respondent contends that the amount claimed is to compensate the secretary for the costs in connection with the preparation for hearing which did not proceed, and the attendance s on 7, 8 and 9 July. The r espondent submits there are seven factors forming part of the special circ umstances as follows : The lateness of the applicants ’ application to adjourn the hearing. It is submitted that if the applicants had made a timely application and obtain ed an adjournment at an earlier time , the hearing preparation costs and appearance costs might have been avoided. The applicants could have raised the issues earlier and one of the issues raised , about the redactions to the complainant identit ies , was known to GRR at all relevant times, namely for over a year from the date of the stay hearing in the matter on 2 July 2024 . GRR's asserted cardiac health condition was also a matter which he had claimed had arisen some months prior to 7 July 2025 . Furthermore, the applicants failed to attend earlier directions hearings which would have provided an opportunity for them to make an adjournment application on the earl ier occasions. They did not do so . The applicants ’ ill - preparedness for the hearing also gives rise to a special circumstance because it wa s unreasonable for the applicants to require the respondent to incur legal costs in preparation for a final hearing when the applicants had not made good faith attempt s to prepare their case . This reveals a recklessness as to the risk that the respondent would incur unnecessary costs. The applicants ’ failure to comply with the Tribunal directions on 19 March 2025 and the repeated no n- appearance s at directions hearings reinforce the unreasonableness of the applicants ’ expectation that the respondent be required to incur costs for final hearing when the applicants had less than a “ lukewarm intention ” to prosecute their application at the final hearing. The successive applications by the applicant to adjourn the hearing on 7 July 2025 , which remained part heard on 8 July , and the second adjournment application on 9 July 2025 took up substantial time during the hearing days. Responsibility for this lay entirely with the applicants who failed to observe NCAT Guideline 3 – Adjournments , namely they fail ed to make a timely adjournment application which may have been able to be dealt with in a half day special fixture in advance of the hearing or, alternatively , on the first day . The applicants also failed to file probative evidence from the doctors which may have avoided the need to take oral evidence from Ms Steel and from Doctor Maze . The applicants were reminded about G uideline 3 in writing by reasons delivered by the T ribunal on 7 July 2025 and orally by the Tribunal on 8 July 2025. N on-compliance is inexcusable . A n adjournment application over 3 days is extraordinary and the applicants have been responsible for prolonging unreasonably the time taken to dismiss the proceedings. The applicants failed to attend the hearing without a valid excuse and refused the Tribunal ’ s invitations to conduct the hearing in a way that could have accommodated their ill - preparedness and the risk of future acute medical incidents. In doing so, they have caused costs to be thrown away and the respondent is denied a determination on the merits. The respondent remains at risk of an application by the applicants to reinstate the proceedings . If the respondent cannot have a determination o n the merits to quell the risk of a reinstatement of the proceedings , he should have his costs thrown away to compensate him for preparing for a hearing which , if the applicants had participated in good faith , would have resolved the dispute on the merits. It is submitted that the applicants have conducted the proceedings in a way that unnecessarily disadvantaged the respondent . The applicants have entered a general denial of the allegations raised in the respondent ’ s cancellation decisions but there were no particulars given for the denial and no specific evidence le d in contradiction. The applicants have not attempted to identify the real issues in dispute or the specific contentions the respondent is required to meet. This also unnecessarily disadvantaged the S ecretary and increase d the burden of preparing the case, which dramatically increased the quantum of the costs thrown away. Section 60(3)(c) permits the Tribunal to take into account 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. The respondent ’ s primary submission is that the applicants ’ case was doomed to fail because the S ecretary made out his prim a facie case as to the breaches of the National Law and the applicants le d no evidence in contradiction or submissions addressing the substance of the respondent ’ s case. Even if the applicants ’ application could not , on this costs application, be found to have been doomed to fail it remains unsatisfactory that the applicants have attempted to avoid a determination of the application on the merits in circumstances where the applicants have failed to engage with the critical defects in their case. A n example of this is in relation to one of the issues in dispute about the unlawful transporting of children between services by the applicants to conceal the over - enrolment of children at the service s operated by the three corporate applicants. The respondent ’ s case included contemporaneous correspondence evidencing this conduct . The respondent submits that there is compelling evidence of wrongdoing and concealment of wrongdoing by the applicants , yet the applicants ’ approach is simply to plead the general issue by stating that each of the findings are erroneous or that the respondent has misinterpreted the errors. GRR elected not to put on an affidavit in the proceedings to explain contemporaneous admissions made in text communications between GRR and his employees. The respondent submits that the Tribunal has power under s 6 0(4)(b) of the NCAT Act to make a fixed costs order and that the principles attending the exercise of that discretion is set out in ZXJ v ZXK (No 2) [2023] N SWCATAP 76 at [11]-[16]. It is also submitted that the fixed costs order is appropriate where, amongst other things, the sum of costs incurred is relatively modest 203 Castlereagh St Pty L imited v Skybloo Holdings Pty L imited [ 2017 ] NSW CATAP 29 at [ 40 ] ( 203 Castlereagh ) . The respondent claims around 10% of the costs he actually incurred in the proceedings. It is also relevant that fixing costs will avoid the expense , delay and aggravation arising out of the process of assessing costs : Hamod v N ew South Wales [ 2011 ] NSWC A 375 at [817] . The attitude of the applicants at directions hearing s and in the final hearing reveals a real risk that they will frustrate or delay any costs assessment process . R equiring the respondent and the applicants to proceed to assessment will only invite a new dispute in a new forum and protract a relationship that would be better brought to an end sooner. It is submitted that the Tribunal is entitled to take into account the relative responsibility of the parties for the costs incurred and the applicants are solely responsible for the cost being thrown away that are claimed by the respondent in this application. While the respondent knowledge s he was also responsible for some early delays in the matter, none of the costs claimed are attributable to those delay s. Where there is a real question as to whether any of the applicants have capacity to satisfy a costs order, it is appropriate to order a gross sum costs order if the costs of assessment would ultimately be irrecoverable from an impecunious costs debtor . The respondent claims $18,882.58 and submits the evidence provided addresses the information indicated in 203 Castlereagh about what should be provided in a fixed costs application. It is further submitted that the Tribunal may determine by whom and to what extent costs are to be paid under s 60 (4)(a) of the NCAT Act . The Tribunal should require that each of the applicants bear joint and several liability for the costs for the following reasons : Costs are compensatory and the respondent should not be left out of pocket by one of the cost s debtors being wound up in insolvency or absconding. There is a real risk as to the possible solvency of at least one of the applicants such that the apportionment of costs would mean that a proportion could be irrecoverable. The four proceedings involved one common factual matrix, the issues are identical between each applicant, there were orders made for evidence in one proceeding to be evidence in the other and the hearings to be conducted concurrently. The work done in preparing for hearing and attend ing the hearing cannot be apportioned between discrete or several issues or proceedings. There is no disadvantage to any applicant because on a hypothesis w h ere only one of the applicants had b r ought an application for review of their cancellation decision, the respondent would likely have conducted the case in the same way – GR R ’ s contact across each of the three services is probative evidence as to his fitness and character. Each of the applicants have the same controlling mind, GRR, being the same director and shareholder such that they have the same economic interest, and each are beneficially owned by GRR. Each of the applicants , by reason of having the same controlling mind, are each complicit in the conduct that gave rise to the special circumstances justifying an adverse costs order against them. The amount sought by the respondent is relatively modest. In supplementary submissions relating to the ASIC evidence about the de registration applications, the respondent submitted th at leave should be given to extend the time for the respondent to rely on the new evidence and submissions . T he proposed de registration of two of the corporate applicants was relevant and probative to the costs application, the evidence is documentary and is as a result of the conduct of GRR, there is no un fairness or surprise to G R R in meeting the evidence , the delay is brief , there was a reasonable explanation given as to when the respondent ’ s lawyer became aware of the new evidence and there would be no prejudice to the applicant s if they are given an extension of time to respond. We accepted these submissions and, as outlined above, we extended time to both parties to comply with the timetable in relation to the costs application. It is submitted that the conduct of G R R in moving to voluntarily deregister H i 5 Childcare Centre Pty Limited (Hi 5) and 3 Bears Childcare Centre Pty Limited (3 Bears) , notwithstanding that the applicants had a right of reinstatement , is relevant and probative to the Tribunal in making a finding that the applicants did not have a bona fide intention to prosecute their application. Relevantly, GRR declared that the companies were no longer carrying on a business. The timing of the voluntary de registration applications c a me within days after the Tribunal ’ s decision to dismiss the applications and is another reason why G R R caused the respondent to unnecessarily incur legal costs. This shows a willingness by the applicants to abandon their review applications, and it is open to the Tribunal to infer that the applicants only maintained a “ speculative ” review application up to final hearing before abandoning it because the Tribunal is otherwise a no costs jurisdiction . T here is no application to voluntarily deregister the third corporate applicant (Apple Bear) because the re was separate winding up proceedings for insolvency against that entity and, while this is no longer the current position, it follows that GR R cannot presently voluntarily deregister that company. GRR has declared in the application for voluntary registration that Hi 5 and 3 B ears have assets of less than $1000. The respondent repeats his submission that the imp ec un i osity of the costs respondent is relevant for exercising the discretion to make a gross sum costs order . I t is also submitted tha t the conduct of GRR is relevant to the respondent ’ s request for orders that each applicant be jointly and severally liable to pay the costs ordered by the Tribunal . The Tribunal is entitled to draw an inference from the timing of events : n amely , shortly after the dismissal application which included a direction about costs, a day before the cost s application was foreshadowed by Ms Steel in her email of 16 July 2025 in the case of Hi 5 and a day after in the case of 3 B ears. GRR's declaration that these companies had no outstanding liabilities and were not a party to any legal proceedings is not correct and it can be inferred by the Tribunal that these were steps taken by GRR design to frustrate the respondent ’ s costs application and any order the Tribunal determined, in its discretion, to make in his favour. It also leads to an inference that GR R is no longer interested in maintaining Hi 5, 3 B ears and Apple Bear for the purpose of orderly administration of their financial affairs and there is a risk there will be no person willing to be responsible to manage those entities, including for the purposes of complying with any costs orders made by the Tribunal . GRR provided an email to the Tribunal o n behalf of himself and the other applicants as fo llows: “I would like to apply for reinstate all 4 proceedings in 4 different hearings. It had been absolutely unfair procedures of hearings since early days of proceedings. All proceedings were manipulated by individuals by using the "representatives" of the Department of Education to either protect or act on best interests of tax payers. If the costs were granted they would be significant errors will be added from the day one of "anonymous complainant" submitted to the Department of Education on 30 April 2023. One of main reasons each party should pay its own costs are the solicitor, Ms Harriet Steel, who is master mind for all proceedings in representating [sic] the Respondent was very well know at least one week before the THIRD SUBSTAINTIAL HEARINGS, scheduled on 7 July 2025 that [I] was very sick after charity trips from South East Asian countries. One of health issues were coughing with dark blood and diarrhoea with blood and high heart rates. We had to admit hospital and was diagnosed with suspicion of TB and gastro which were highly infectious. I also take this opportunity to ask for all people were in the hearing room or surrounding to take TB tests because I had direct contact with people had positive of TB and gastro during visits. The cardiologist had strongly advised me to avoid any things could trigger stress and high levels of heart beats during the treatments. Therefore, we apologise any inconvenience could cause to the Tribunal. If the FIRST and SECOND substantive hearings abd [sic] other direction hearings were either boycotted or deliberately delays by Ms Steel and her legal team, we would be concluded these matters since the FIRST SUBSTANTIVE HEARING on December 2024. I am seeking the Tribunal to order each party to pay for iys [sic] own costs and giving leave to reinstate all four proceedings. Separate application of reinstates will be submitted hard copies at counter. Thank you for your support and considerations.” As noted above, this email was referred to the Tribunal insofar as it contained contentions in relation to the application for costs by the respondents . This email does not respond directly to the submissions raised by the respondent in the written submissions dated 17 and 21 July 2025. Consideration Can the costs application be made on the written material dispensing with a hearing? Section 50 (1) of the NCAT Act provides that a hearing is required for proceedings in the Tribunal except , releva ntly, if the Tribunal makes an order under this section dispensing with a hearing . Section 50(2) provides that t he Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first afforded the parties an opportunity to make submissions about the proposed order and taken any such submissions into account : s 50(3) . Both parties were directed to provide evidence and submissions in relation to the application for cost s. They were also directed to address the question of whether the application could be determined on the basis of the material provided, so that a hearing could be dispensed with under s 50(2) of the NCAT Act. The respondent submitted that the application should be determined on the pa pers and consented to an order dispensing with the hearing. The applicants did not make any submissions addressing this issue . We are satisfied that the costs application may be determined on the papers in the absence of a hearing attended by the parties, by considering the evidence and written submissions filed. The respondent has provided extensive submissions and evidence relevant to his applica tion for costs. The applicants have been given the opportunity to provide submissions and evidence in response. The applicants provided emails dated 29 August and 4 November 2025. We have considered those emails , although we note the submissions and evidence submitted is limited . T he applicants contend each party should pay their own costs and they do not respond to the respondent ’ s detail submissions and evidence . Despite this , we are not satisfied that a hearing on the costs application would provide any further evidence o r submissions from the applicants to assist our deliberations. First, the applicants have already failed to comply with the timetable and have provide d no substantive submissions addressing the issue other than a request that each party pay their own costs. Secondly, the applicants have a history of non-appearance, and they have not requested that the costs application be listed for hearing but rather that the matter be reinstated . Thirdly, it is consistent with the guiding principles set out in s 36 (1) of the NCAT Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings . Accordingly, we make an order dispensing with a hearing under s 50(2) of the NCAT Act and consider this application having regard to materials provided by the respondent and the limited material provided by the applicants. Are there special circumstances that warrant an award of costs? The Tribunal has a discretion to award cost but only if it is satisfied there are “ special circumstances warranting an award of costs ” . As observed by the Appeal Panel in Kominda trading as We Paint Pools v Kelleher [2018] NSWCATAP 56 at [17]: “ The term ‘special circumstances’ is not defined in the Act. It has been interpreted to mean circumstances that are out of the ordinary but not necessarily extraordinary or exceptional. The discretion to award costs must be exercised judicially having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. ” Section 60(3) sets out the matters the Tr ibunal may have regard to in determining whether there are special circumstances warranting an award of costs . The matters listed are not exhaustive and the Tribunal may have regard to “ any other matter that it considers relevant ” . If the Tribunal is satisfied that there are special circumstances, it must then consider whether it is satisfied that the circumstances warrant an award of costs . I t does not follow that where one or more of the factors in s 60(3) are established a cost order should follow . T he exercise of discretion requires the Tribunal to weigh those circumstances to consider whether they are sufficient to justify departing from the general rule that each party bears its own costs : Smith v The Owners – Strata Plan 5101 7 [ 2020 ] NSWC ATAP 161 at [ 26 ] citing BPU v NSW Trustee and Guardian (Costs ) [ 2016 ] NSWC ATAP 87 at [ 9 ]. The fact that a party is unsuccessful in his or her claim does not of itself give rise to special circumstances: Jubian v Clark (No 2) [2016] NSWCATAP 153 at [29] . Further, where proceedings terminate before a hearing or before the disputes which are the subject of the proceedings are determined on the merits , a c ourt or t ribunal should not resolve the issue of costs by engaging in something in the nature of a hypothetical trial to ascertain who would have won or the relative strengths and weaknesses of the parties : McHugh J in Re Minister for Immigration & Ethnic Affairs; Ex Parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 at 624-625. R ather , the determining factor will frequently be the reasonableness of the conduct of the parties in the commencing and conduct of the proceedings: ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270 ; (2000) 101 FCR 548 at [5]-[6] ; Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84 ( per Payne J with whom Meagher JA agreed) at [30] and [32] . As noted above, t he respondent has identified seven factors and an additional matter relating to the application for deregistration of Hi 5 and 3 Bear and the winding up application filed in relation to Apple Bear , which he submits establish special circumstances warranting an order for costs . Those submissions are persuasive for the following reasons: The application for costs is modest but more relevantly, it relates to costs thrown away on 7 - 9 July 2025 as a result of the applicants ’ late and, in our view and for the reasons outlined in the dismissal decision, unsubstantiated applications for adjournments and failure to appear . Ms Steel outlines the procedural history of the various directions made by the Tribunal prior to the hearing at paragraphs 30 - 41 of her affidavit and attaches, w h ere relevant, the orders or direction s made by the Tribunal . We are satisfied that her account of the procedural history is accurate. Notably, a fter the dismissal of the appeal and the application by GRR for administrative review was filed but p rior to the hearing commencing on 7 July 2025, the Tribunal listed the proceedings for case management and pre-hearing directions on six occasions . Orders or directions were made on each occasion . There was no appearance by the applicants at three of those directions hearings . We accept the contention of the respondent that , apart f ro m the material filed in November 2024, the applicants have not filed any further material in support of their claims . One of the reason s for the adjournment request prior to and on 7 July 2025, which was repeated in subsequent applications, was that the applicants wanted further time to respond to the material provided by the respondent . The respondent submits, and we accept, that the fact the applicants were not prepared for the hearing was a matter that was known to the applicants well prior to 7 July 2025 . The lateness of the application for an adjournment directly contributed to the costs thrown away by the respondent because the respondent ’ s lawyers and counsel were required to appear and prepare for the hearing . The subsequent applications and failure to attend prolonged the hearings , despite the Tribunal advising the applicants that efforts would be made in the conduct of the hearing to accommodate the applicants ’ lack of preparedness and any issues relating to GRR ’ s medical conditions . In o ur view, t hese matters not only disadvantaged the respondent and put the respondent to unnecessary cost (s 60(3) (a)) but prolong ed unreasonably the time taken to progress the proceedings and , in particular, deal with the applicants ’ repeated adjournment applications in the period from 7 to 9 July 2025 (s 60(3)(b)) . The se delays and addition al expense were a consequence of the applicants ’ refus al or , at best, failure to comply with the duty imposed by s 36(3) of the NCA T Act and to comply with directions and NCAT guidelines issued by the Tribunal even though the applicants were on notice of those direc tions − they were amended on several occasions because of the applicants ’ non-compliance or at the applicants ’ request – or because the Tribunal expressly referred to those directions and guidelines at the hearing. The respondent submits that the responsibility for the excessive delay during the hearing lay entirely with the applicants who failed to observe NCAT G uideline 3, failed to make a timely adjournment application and failed to provide probative evidence about GRR ’ s medical condition . We accept this submission and , in this regard, refer to our dismissal decision, which outlines the various applications , delays , evidence relied on by the applicants and the reasons for our procedural rulings to adjourn for a limited period and to final refuse the adjournment request at [16]- [44] . This is a relevant factor indicative of special circumstances under s 60(3)(f). We further accept the respondent ’ s submission that the applicants ’ failure to attend the hearing on the final day of the hearing, without excuse, r esulted in the dismissal under s 55 (1)(c) and exposed the respondent to an application for reinstatement of the proceedings , thereby d epriving the respondent of the opportunity to resolve the dispute on the merits . The respondent contends that this conduct disadvantage d the respondent, exposes the respondent to further expense and may prolong the time taken to complete the proceedings because of the risk of reinstatement . The applicants have repeated ly referred to proposed applications for reinstatement in email correspondence with the Tribunal and the respondent , despite the fact that no formal application has been made, the period for an application expired over four months ago (given the provisions of r 36 of the Civil and Administrative Tribunal Rules 20 14 (NSW) which provides that such applications must be made within 7 days after the Tribunal dismissed the proceedings ) , no application for an extension of time has been made and GRR has made application s to deregister Hi 5 and 3 Bears . On the one ha nd, the risk of reinstatement is theoretical and now somewhat remote . However, we accept there is a risk the respondent c ould be exposed to the cost of defending an application for an extension of time and, if successful, an application for reinstatement. This is a significant disadvantage to the respondent, w ho was ready to proceed with the substantive hearing on 7 July 2025 . In our view, this gives added weight to the contention that there are special circumstances warranting making a costs order in r elation to the costs “ thrown away ” from 7 to 9 July 2025. We accept the costs claimed were “ thrown away ” because the respondent and his lawyers and counsel were required to attend, there was no evidence or opening submissions made , the hearing was taken up with dealing with the applicants ’ adjournment applications or waiting for the applicants to appear and there was no determination of the merits of the application. For the reasons outlined above, we have not and do not propose to review th e evidence and submissions provided by the parties to form a view on the relative strengths of the parties ’ claims . T o do so would be time consuming , is not warranted to determine the costs issue and is inconsistent with the guiding principle under the N CAT Act . We therefore are not able to conclude that the applicants ’ arguments were “ doomed to fail ” or that the applicants ’ application for merits review ha d no tenable basis in fact or law . Despite this, we accept that the respondent ha d strong grounds to cancel the provider approvals and to make the prohibition order against GRR . These grounds are referred to in the stay decision . We also accept the submission of the respondent that a review of the material and submissions filed by the applicants reveals general denials of the asserted facts, and it is relevant, given the evidence submitted by the respondent , that the applicants did not file and serve any evidence from GRR. In short, we accept , based on the material provided to the Tribunal , that the applicants ’ applications for review are not strong, and this may be one of the factors to consider on whether there are special circumstances, but we c annot say that their claims have no tenable basis in fact or law . This submission, when considered together with the non-compliance and failure to appear as outlined above and the evidence of the applications for deregistration made within six and seven days of the dismissal application , within seven days of the hearing and within the period that the applicants could make a reinstatement application, tends to support the respondent ’ s contention that the applicants did not have a bona fide intention to prosecute the review application , at least by the time of the hearing . Despite this , w e do not accept that it is open to the Tribunal to infer that the applicants only maintained a “ speculative review ” up to final hearing before abandoning it because the Tribunal is otherwise a no cost s jurisdiction. There is certainly no evidence before us to ground such a finding or to make such an inference in circumstances where there could be a number of reasons why the applicants failed to comply with directions or appear at various directions hearing s . Notably, t he applicants made a n application for a stay , appeared at several directions hearings and file d material in support of the reviews in late 2024 . However, we accept the submission that the applicants have been less engaged in prosecuting the review , particularly since March 2025 . Accordingly, we also accept that t hese are matters that point towards special circumstances . I t is the applicants ’ obligation to properly and in a timely manner prosecute the proceedings that t hey have initiated or otherwise withdraw from those proceedings at the earliest opportunit y. Failure to do so exposed the respondent to significant legal costs For the reasons outlined above, we are satisfied that this is a case where there are special circumstances to warrant an order for costs occasioned by the dismissal of the applications for the costs thrown away as claimed. Should the Tribunal make a lump sum costs order and , if so , what order should be made? Section 60 (4) states: 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. Section 60(4) therefore gives the Tribunal a broad discretion to order costs, including lump sum costs : 203 Castlereagh at [35] . In Hamod , Beazley JA set out the principles relevant to the exercise of the discretion to fix costs under s 98 of the Civil Procedure Act 2005 (NSW) at [813]-[820]. As observed in ZXJ v ZXK at [15] and 203 Castlereagh at [39]-[40] , s 98 is in similar terms to s 60(4) and the principles can be relevantly adapted to the circumstances of the Tribunal . Those relevant principles are: T he discretion may be exercised where the assessment of costs would be protracted and expensive and , in particular, if it appeared that a party obliged to pay the costs would not be able to meet the liability likely to result from the assessment : Hamod at [813] . It may be appropriate to appl y a discount in assessing costs on a gross sum basis : Hamod at [81 4 ]. A specified gross sum costs procedure is particularly useful in complex cases, but the power must be exercised judicially after giving the parties an adequate opportunity to make submissions : Hamod at [81 5 ] . B efore exercising the power, the court (or in this case the Tribunal) should be confident that the approach taken to estimate costs is fair, logical and reasonable : Hamod at [81 5 ] . The exercise of the power is particularly appropriate where the costs have been incurred in lengthy or complex cases, and it is desirable to avoid the expense, delay and aggravation likely to be involved in contested costs assessment. This may arise either from the likely length and complexity of the assessment process or from the likelihood that the additional costs of formal assessment would disadvantage the successful party because of the likely inability of the unsuccessful party to discharge the costs liability in any event : Hamod at [81 7 ] . In the exercise of its discretion , the court (and in this case the Tribunal) is not required to undertake a detailed examination of the kind that would be appropriate to taxation or formal costs assessment but the costs ordered should be based on an informed assessment of the actual costs . The approach taken to estimate the costs to be ordered must be logical, fair and reasonable and t his may involve an impressionistic discount of the costs actually incurred or estimated, in order to take into account the contingencies that would be relevant in any formal costs assessment : Hamod at [81 9 ] -[820] . In 203 Castlereagh , the Appeal Panel , citing Hamod at [39]-[4 0] , identified the type of supporting material usually required to a lump sum cost order at [41] as: “ (1) the timing and nature of costs incurred, including details of the work done, the hours worked, the hourly rates actually charged and, in the case of counsel’s fees, similar details concerning the work done by counsel; (2) the rates at which counsel, other lawyers and other professional advocates, if relevant, charge; and (3) the amount likely to be recoverable on assessment in the event that that took place, which may be established by “objective arm’s length evidence from a costs assessor” (to use the language of Stevenson J in SAB Closed 1 at [10].” The Appeal Panel also stated at [ 45 ] as follows: “Tribunal Members should not generally be encouraged to carry out the work of costs assessors by making fixed sum costs orders. The circumstances most likely to arise in the Tribunal where it might be appropriate for the Tribunal itself to assess costs will usually be where the costs are very modest and the assessment is simple.” Having regard to the principles outlined above and the evidence provided by the respondent, we find that awarding a lump sum for costs is appropriate in the circumstances of this case and the lump sum awarded should be $17,002.58 . Our reasons are set out below. We accept that any costs assessment of the costs thrown away is likely to be protracted and expensive , particularly having regard to the procedural history of this matter, both before and after the dismissal decision , and the m anner in which the applicants have engaged with the Tribunal and the respondent. There is evidence that the applicants will not be able to meet the costs obligation in any event : there is strike off action in relation to two of the corporate applicants, one corporate applicant had winding up proceedings initiated and GRR told the Tribunal that he was not able to obtain or afford legal representation for the proceedings. This is a case where it would be desirable to avoid the expense, delay and aggravation likely to be involved in contested costs assessment . The applicants have submitted that each party should pay their own costs but they have not addressed the detailed submissions and evidence of the respondent, other than to make unsubstantiated generalised assertions to discredit Ms Steel and the respondent . W e are satisfied the applicants have been given the opportunity to respond and make submissions – the timetable was extended to 17 October 2025, which was nearly two months after the respondent ’ s last submissions and evidence on costs were served . They have failed to do so other than by emails dated 29 August and 4 November 2025, as referred to above. Having regard to the affidavit of Ms Steel, w e are confident that the amount claimed is fair, logical and reasonable . It is modest , taking into account the total costs incurred, and is confined in scope to the prehearing preparation and attendance at the hearing over the course of the three days. The costs claimed do not include the costs incurred for making the costs application. The affidavit o f Ms Steel, including the invoices attached to her affi davit, detail the actual costs incurred , reduc ing the invoice for time that is assessed as not properly billable , travel time to the Tribunal with a further discount of 5% applied by reason of the billing arrangements with the respondent. The invoices cover each of the four applications, with the costs equally apportioned between the proceedings. Most of the costs incurred are for Ms Steel . Mr Sherringt on ’ s costs for supervision are modest – he did not attend the hearings which were attended by Ms Steel instructing c ounsel. The invoices and costs claimed appear to be reasonably based and the invoices support the amounts claimed. The hourly rates claimed are less than or within the range set out in the C A RC G uideline. The claim for c ounsel ’ s fees is also supported by detailed invoices for the costs incurred. Those invoices also cover each of the four applications, with the costs equally apportioned between the proceedings . The daily and hourly rate claimed is consistent with the Crown Solicitor ’ s Crown Rates for Counsel of five years ’ experience and is less than t he rates for junior counsel fees as referred to in the C A RC G uideline (in the range of $2,400 to $5,000 per day). The total amount claimed is reasonable and properly particularised . The legal costs incurred were warranted given the complexities of the proceedings. The case involved the cancellation of three childcare provider approvals that had been in operation for over 10 years. The cancellation of provider approvals and the prohibition of a person involved in the management of those services is a serious matter, not only for the applicants but for the integrity of the supervision and regulation of service providers in the childcare industry and the safety of children . Th ese proceedings raised issues of critical concern and importance, where “ the protection of the rights and best interests of each child and the children attending education and care services must be the paramount consideration in giving effect to the National Law, including in making decisions or otherwise exercising functions under the National Law ” : National Law (NSW) , s 3A. The total amount incurred was $22, 337.88 and the respondent has applied a further discount of 75% to the professional fees ( the full amount com prising $ 8,27 7 .68 ) and 10% to Counsel ’ s fees ( the full amount comprising $13,860) to take into account the possibility that legal fees may be further reduced on assessment. The respondent claims all disbursements. Applying a discount to legal fees incurred is appropriate and while we agree with the views expressed in 203 Castlereagh at [45] and our views are necessarily impressionistic, we consider a discount of 70% on professional fees and 20% on Counsel ’ s fees would represent a fair estimate for those costs and the possibility of further reduction on assessment, making a total of $5 , 794. 38 for professional costs, $11, 008 for Counsel ’ s fees and all disbursements of $200.20, making a total of $ 17 ,002.58. Should the applicants be jointly and severally liable to pay the respon dent’s costs? The respondent submits that the Tribunal is empowered to make an order that the applicants jointly and severally pay costs by s 60(4(a) which gives the Tribunal discretion to determine “ by whom and to what extent costs are to be paid ” . The respondent contends that there was one common factual matrix , the issues were identical between each applicant and there were orders made for evidence in one proceeding to be evidence in the other . T he hearings were conducted concurrently. It is submitted that the work done in preparation for the hearing and attending the hearing could not be apportioned between discrete or several issues or proceedings . It is also contended that there is no disadvantage to the applicant s given that GRR's conduct across each of the three services was probative evidence as to his fitness and character. GRR is the same director and shareholder and all applicants have a common economic interest. The respondent also submits there is a real risk as to the possible solvency and continued operation of the corporate applicants and this would leave the respondent out of pocket with a significant proportion of the costs i r recoverable if the Tribunal does not award costs on a joint and several basis . We accept these submissions and note that awarding joint and several liability for costs is consistent with legal authority . As observed by Nixon J in Global Risk Alliance Group Services Pty Ltd v Harmer (No 2) [2024] NSWSC 234 at [48] : “Ordinarily, an order for costs made against two or more defendants is joint and several as between them: Ryan v South Sydney Junior Rugby League Club Ltd [1975] 2 NSWLR 660 at 663 per Bowen CJ in Eq. The general principle that multiple defendants are to be made jointly and severally liable for the costs of the successful party flows from the rationale that, because the successful party is prima facie entitled to its costs of the action, that party should not lose its entitlement if one of the parties against whom costs orders are made cannot, or will not, meet its share of the costs burden: Perigo v Workers Compensation Nominal Insurer (No 3) [2013] NSWSC 6 at [4]–[5], citing Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213; Rushcutters Bay Smash Repairs Pty Ltd v H McKenna Netmakers Pty Ltd [2003] NSWSC 670 at [16]; Scripture Union v Prime Industrial Pty Ltd [2006] NSWSC 38 at [28]. The position may be otherwise where, and to the extent that, one defendant conducts a separate and distinct defence which leads to the incurring of costs which cannot be attributed to the joint conduct of the defendants in the defence of the action: Thiess Watkins White Constructions Ltd (in liq) v Witan Nominees (1985) Pty Ltd [1992] 2 Qd R 452 at 454; Rushcutters Bay Smash Repairs v H McKenna Netmakers at [14]; Scripture Union v Prime Industrial at [29].” This is not a case where the applicants conducted separate and distinct case s, the factual matrix and issue s were common. We also accept that if costs cannot be recoverable against the corporate applicants, it would be unfair for the respondent to be out of pocket for those costs where GRR is the controlling mind of the corporate applicants and his conduct gave rise to the special circumstances warranting costs orders under s 60(2). We therefore award the costs jointly and severally against the applicants. Conclusions and orders For the reasons outlined above we order: Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing on the question of costs is dispensed with. The applicants are to pay the respondent ’ s costs thrown away , occasioned by the dismissal of the applicants ’ applications for review pursuant to s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), in the fixed sum of $17,002.58 jointly and severally . ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 December 2025