(a) Am I correct to read the reply as a threat? If so, what are my options?
It certainly sounds like a threat and your options are varied:
- ignore it and press on;
- abandon your request for mediation (all you can ask from Fair Trading);
- moderate your claim so that it doesn’t fall foul of the “costs” conditions at NCAT, should it ever get that far
(b) If the OC does “seek costs”, I assume they will have to prove that my actions are “spurious” and lodge an application with NCAT for costs? True?
If this is about seeking legal costs for responding to a request for mediation at Fair Trading, that feels like a step too far, since the OC is not required to participate in a mediation that it hasn’t initiated.
If you are referring to subsequent action at NCAT, as this factsheet from Legalvision explains, the bases for NCAT awarding costs are limited and discretionary, however, one of the conditions is that the case was “hopeless, frivolous, vexatious or misconceived”.
On the other hand, if the case does go to NCAT and the OC loses, you should not be charged for any share of the legal expenses through your levies.