Cahill v Residential Tenancies Board (Approved)

Factual and Procedural Background

This opinion concerns an appeal brought by the Appellant against a determination order made by the Respondent on 28 February 2024. The Appellant initiated his appeal several months outside the 21-day time limit prescribed by statute. The High Court dismissed the appeal on the basis that it was not brought within the required time period. This judgment addresses the issue of costs following that substantive decision.

Legal Issues Presented

1. Whether the Respondent is entitled to an order for costs following its successful preliminary objection that the Appellant's appeal was out of time.
2. Whether any special circumstances exist that would justify departing from the general rule awarding costs to the successful party.
3. Whether the Appellant was disadvantaged in the conduct of the hearing such that it should affect the costs order.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended he was disadvantaged during the hearing due to technical difficulties accessing the remote hearing, including initially receiving the wrong link and his camera not functioning.
• He claimed he could not hear the Respondent's counsel clearly at times.
• The Appellant alleged procedural irregularities, including the Respondent's failure to follow court instructions regarding evidence and the absence of his "books of evidence" in court, which caused stress and anxiety.
• He asserted that he did not have sufficient time to present evidence on three matters and suggested some of the Respondent’s evidence was incorrect.
• Some of his submissions addressed the substantive merits of the underlying determination rather than the timing issue relevant to the costs decision.

Respondent's Arguments

• The Respondent submitted that it was entirely successful on the preliminary objection concerning the timing of the appeal and was therefore entitled to costs under the Legal Services Regulation Act 2015 and court rules.
• It argued the Appellant had ample opportunity to raise any procedural or technical objections during the hearing but did not do so.
• The Respondent maintained that the Appellant was able to participate fully, was given sufficient time to present evidence and submissions, and was not disadvantaged by remote participation or technical issues.
• The Respondent noted that the Appellant’s complaints about the substantive merits of the underlying determination were irrelevant to the costs issue.
• The Respondent relied on established case law supporting the award of costs to a party entirely successful on a preliminary objection.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by reaffirming the principle under s. 169 of the Legal Services Regulation Act 2015 that a party who is entirely successful in proceedings is presumptively entitled to costs. The Respondent’s preliminary objection that the Appellant’s appeal was out of time was upheld, resulting in the dismissal of the appeal. The Court found no special circumstances or conduct by the parties that would justify deviating from the ordinary rule on costs.

Regarding the Appellant’s complaints about the hearing, the Court reviewed the Digital Audio Recording and found that the Appellant was able to participate fully despite technical difficulties such as a non-functioning camera and initial access issues. The Appellant did not raise any objections during the hearing nor request an adjournment. The Court also found that the Appellant was given sufficient time and opportunity to present evidence and submissions, and that documents initially missing were promptly located and considered.

The Court noted that many of the Appellant’s submissions concerned the substantive merits of the underlying determination, which were irrelevant to the timing issue that formed the basis of the preliminary objection and the cost decision. Therefore, those points did not affect the costs ruling.

In conclusion, the Court determined that the Respondent was entitled to costs of the application and the proceedings, as the Appellant’s appeal was dismissed on a clear legal ground and no special factors justified a different order.

Holding and Implications

The Court’s final decision is that the Respondent is entitled to an order for costs against the Appellant in respect of the application determining the preliminary objection and the proceedings generally, including reserved costs and costs of written submissions.

This decision enforces the statutory and procedural norm that a party successful on a preliminary issue is entitled to costs, absent exceptional circumstances. The ruling directly results in the Appellant bearing the costs of the litigation following dismissal of the appeal as out of time. The judgment does not establish any new precedent or alter existing principles on costs.