Abdelmessiah v Lifestyle Marketing Pty Limited

The nature of the appeal

1. A decision awarding costs is an "ancillary decision" as referred to in s 80 (2) (b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act): see definition in s 4 (1).
2. In respect of such a decision, a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law: s 80 (2) (b). In respect of any other grounds of appeal, leave to appeal is required as regulated, in this case, by cl 12 sch 4 of the NCAT Act.
3. Furthermore, Grounds 2 and 3 of the appeal, referred to below, challenged an exercise by the Tribunal of a discretion in respect of costs, as to which the principles in House v The King [1936] HCA 40; (1936) 55 CLR 499, at 504-505, were applicable, including that: 1. It is not sufficient that the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. 2. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

Grounds of appeal

1. We consider that the appellant's amended grounds of appeal can be summarised as follows: 1. The Tribunal erred in finding that Rule 38 (2) of the Civil and Administrative Tribunal Rules 2014 (NSW) was applicable because at the hearing of the proceedings at first instance the appellant made it clear that its claim was for less than $30,000 (Ground 1). 2. The Tribunal erred in failing to find that the appellant was the successful party at first instance (Ground 2). 3. The Tribunal erred by taking a punitive approach against the appellant in the exercise of the discretion as to the award of costs (Ground 3). 4. The Tribunal erred by failing to consider that the respondents' unsuccessful challenge to the jurisdiction of the Tribunal, the subject of a separate judgement before the hearing on the merits, was a discrete issue in respect of which the respondents should not have received any award of costs (Ground 4).
2. The appellant's submissions in respect of the grounds of appeal, principally, if not entirely, focused upon alleged errors of law in relation to the application of Rule 38 and concerning the question as to which party was the successful party. The submissions did not address the question whether the conditions, including discretionary considerations, in respect of the grant of leave to appeal had been satisfied.
3. Nevertheless, the amended Notice of Appeal did include an application for leave to appeal, should such leave be necessary. As to this, we take it from the amended Notice of Appeal that the appellant contended that the decision was not a fair and equitable one in circumstances where, as was stated in the amended Notice of Appeal: There has been a substantial miscarriage of justice in that: a. The decision was not fair and equitable as the Appellant who succeeded in establishing misleading and deceptive conduct by both Respondents and to recover damages as a result of that misleading and deceptive conduct was treated incorrectly as the unsuccessful party. b. The Tribunal took a wrong punitive approach to costs purely on the basis that an earlier point in time the Appellant had claimed a higher amount of damages which claim was plainly beyond the jurisdictional limit of the Tribunal.
4. For reasons that appear below, we consider that the grounds of appeal did raise questions of law in respect of which the appellant has a right of appeal under s 80 (2) (b).
5. As is explained below, we consider that, because of two of the matters raised by the appellant, the Tribunal's exercise of the discretion contained appealable error and, therefore, should be set aside and, upon our re-exercise of the discretion, the appellant should be ordered to pay the respondents' costs, save for their costs in relation to their challenge to the jurisdiction of the Tribunal.

Rule 38

1. Rule 38, relevantly, provides as follows: 38 Costs in Consumer and Commercial Division of the Tribunal (1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if - …… (b) the amount claimed or in dispute in the proceedings is more than $30,000.
2. When the rule applies, costs will usually be awarded in favour of the successful party in accordance with the principle that costs should follow the event: Bondi Builders Pty Ltd v Dennis [2022] NSWCATAP 317 at [28]-[ 29].

Relevant facts and matters

1. By an application, dated 8 November 2021, the appellant commenced proceedings in the Tribunal against the respondents seeking an order that she be paid the amount of $200,000 in respect of a consumer claim. The application did not identify the components of the alleged loss of $200,000 and did not, for example, identify the holding deposit of $1000 (referred to in Order 2) as part of such loss.
2. At the time when this application was made, the Tribunal had no jurisdiction to order more than $40,000 in respect of the appellant's claim. The claim was heard on 31 August 2022, at which time the monetary limit on the Tribunal's jurisdiction had increased to the amount of $100,000 (Cl 13A Fair Trading Regulation 2019).
3. The appellant's claim arose from dealings in October and November 2020 concerning an undeveloped and unregistered lot of land for sale in a proposed housing development in Claremont Meadows, Western Sydney. These dealings included her payment of $1,000 to the first respondent, which was described in her application as a refundable deposit and a payment she made to secure the purchase of the land. She alleged that between November 2020 and September 2021 she was not informed of any progress with her proposed purchase of the land and that during this period she was waiting to receive building plans for a house be built on the lot. To her dismay, she then learnt that the lot had been sold to another party at a higher price than the price outlined to her in October 2020. She claimed that after she paid the deposit she sold her house and then had to rent another property while waiting to proceed with the purchase of the lot and house in Claremont Meadows. The appellant never entered into any contract for the sale of land in respect of this lot.
4. It was uncontroversial that the relevant lot (Lot 2) was sold to third parties on 19 July 2021.
5. Pursuant to directions made by the Tribunal, the appellant served Points of Claim, dated 25 January 2022. These contained claims of misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law (NSW) (ACL) and unconscionable conduct in contravention of s 21 of the ACL. She sought loss or damages pursuant to s 236 of that Act, which section makes provision for recovery of loss or damage suffered "because of" relevant conduct of another person.
6. At the hearing at first instance, the claim for unconscionable conduct was not pursued and only one part of the misleading and deceptive conduct claim was pursued. This was a claim based upon what were identified in the Points of Claim as the "Deposit Representations"- the other misleading and deceptive conduct claim based upon what was said to be the "Lot 2 Representations" was not pursued.
7. The "Deposit Representations" were specified (paragraph 13 of the Points of Claim) as: 1. The lots on the property were selling quickly. 2. If the appellant paid a "holding deposit" on Lot 2 she: 1. could prevent Lot 2 from being sold to another purchaser; 2. was guaranteed to purchase Lot 2.
8. After specifying the alleged misleading nature of these representations, which did not address the, largely, promissory nature of the representations, the appellant alleged that her loss and damage was based upon her reliance on, relevantly, the "Deposit Representations" in a number of ways, including: 1. paying the "holding deposit" for Lot 2- it was clear that this was a reference to the $1000 payment; 2. hastily selling her existing property in Claremont Meadows; 3. obtaining rental accommodation for which she had paid rent since 8 December 2020 and continued to pay rent; 4. ceasing her search for a residential property to purchase which was suitable to accommodate her ageing mother.
9. In the Points of Claim (paragraph 18), the appellant quantified her loss as amounting to $456,970 made up of five components, namely the holding deposit, rent for the period from 8 December 2020 to 8 December 2021, rent from 9 December 2021, loss on sale of her existing property in Claremont Meadows, and loss of opportunity cost (the opportunity being to have enjoyed the benefit of a capital appreciation of Lot 2).
10. Up until the hearing at first instance, the appellant pitched her case at a level where she claimed, in substance, that she had been led to believe that by paying the deposit she could be assured that she would be in a position to buy the property. Her alleged reliance, and very substantial alleged consequential loss, potentially, flowed from this level of assurance.
11. As will be seen, the Tribunal rejected this case and, based upon oral evidence given from both parties at the hearing, instead found that a very substantially weaker representation had been made to the appellant to the effect that the appellant would be informed of offers to purchase from other parties. The Tribunal, however, dismissed the case based upon this representation because it found that the appellant had not established that she had suffered any loss as a result of such a representation.
12. In the Points of Claim, the appellant did not make any contractual, trust or restitutionary claim for return of the holding deposit, despite her contention in the application that it was a refundable deposit. Nevertheless, as discussed below when dealing with Ground 2 of the appeal, we do not consider that this precludes a conclusion that the appellant achieved a measure of success in the proceedings.
13. The following events are also relevant to the question whether the appellant was the successful party, or achieved some measure of success, in the proceedings.
14. Before the appellant commenced her proceedings in the Tribunal, she was sent an email on 2 September 2021 on behalf of the first respondent, in which, for reasons which were explained, the appellant was informed that it was very difficult for the appellant to build in the estate and she was asked if she wished to receive the holding deposit back.
15. Subsequently, following an email response from the appellant in which she stated that she felt she had been let down, misled and suffered losses over $150,000, the appellant was informed in an email, sent on behalf of the first respondent on 8 September 2021, that it was felt that there was nothing more they could do for her and that she could request her refund back.
16. There is no suggestion that the appellant made any such request for return of the deposit before commencing proceedings in the Tribunal. However, each of these emails from the first respondent was sent before the appellant became aware that Lot 2 had been sold to a third party.
17. In the period between the commencement of proceedings in the Tribunal in November 2021 and the hearing of those proceedings on 31 August 2022, there were some communications between the parties about the holding deposit, but there was no clear and unconditional offer from the respondents to refund the money.
18. In a letter from the solicitors for the second respondent, dated 30 November 2021, not long after the appellant commenced proceedings in the Tribunal, the appellant was invited to withdraw her claim because it was said to be lacking in substance and was informed that if she did so within 7 days the second respondent would not take any steps to seek an order that the legal costs it had incurred to date be paid by the appellant. The letter concluded with a warning that if the appellant continued with her application against the second respondent the latter reserved its right to seek an order that the appellant pay its legal costs.
19. In the same letter, the following was stated: 6. My client does not accept your assertion that the refundable $1,000 deposit paid by you to the first respondent in November 2020 evidenced a contract between you and it, giving rise to an obligation by my client to sell you this or any other land, and or land/house packages. [Our emphasis] 7. Additionally, my client denies that the payment of a refundable $1,000 deposit gave you some sort of option or priority right to a purchase of this or any other land or land/house packages, from it. [Our emphasis] 8. Rather my client asserts that the purpose of the deposit was to provide you with an opportunity to meet my client's representative to discuss potential purchases. 9. I am instructed that: a. on receipt of the deposit, the first respondent provided you with this opportunity by organising a meeting at my client's offices, b. the meeting took place on 19 November 2020 with you and the first respondent's representative present, c. at the meeting my client's representatives made it clear that you should provide a budget to the first respondent for transmission to my client to enable it to prepare building plans that were suitable and appropriate to your budget, d. you have not provided the requested budget to either respondent.
20. The appellant relied upon these statements in support of its submission that her right to recover the holding deposit was contested by the respondents up until the hearing at first instance and that recovery of the deposit was achieved by her proceedings (see Order 2). The second respondent rejects this interpretation of the letter. It points to the reference to the deposit being refundable and submits that the statements about its purpose was relevant to the issues in the proceedings that did not concern recovery of the holding deposit.
21. We examine more aspects of the background to the making of Order 2 below, but for now note that this letter from the second respondent contained no offer to refund the deposit, or procure such refund, and it appeared to follow from what was said in paragraphs 8 and 9 of the letter that, according to the second respondent, the appellant had received what she paid for in paying the deposit.
22. The respondents' defences provided after the Points of Claim denied that the appellant had suffered loss and damage as a consequence of the alleged misleading conduct by the respondents and, otherwise, said nothing about the holding deposit, including, for example, that the appellant was entitled to have the holding deposit returned to her. Having said this, however, as already mentioned, strictly, it was not necessary for them to do so because there was no claim by the appellant in contract, restitution or trust law for return of the holding deposit.
23. On 17 May 2022, the first respondent provided the appellant with its outline of submissions in the proceedings at first instance, along with its evidence. In the outline submissions, it was said: 25. [The appellant] also asserts loss of the $1,000 refundable deposit, however this is been offered to be return (sic) to [the appellant] on numerous occasions. [The first respondent] remains open to returning this deposit to [the appellant].
24. The reference to "numerous occasions" appears to have been a reference to the above emails of 2 and 8 September 2021, only.
25. The choice of language "remains open" to returning the deposit is ambiguous. It stopped short of a plain statement that the appellant was entitled to have the deposit returned to her. A letter from the first respondent's solicitors, sent the following day, provides further light on the first respondent's position, at this time, concerning a return of the deposit.
26. In this letter, dated 18 May 2022, marked without prejudice save as to costs, the first respondent made an offer to settle the claim against it on the basis that judgement was entered in favour of the first respondent with no order as to costs. The holding deposit was referred to as part of the "Offer" in the following manner: 3 Our client offers to bear its costs incurred to date in response to the proceedings if you will agree to your claim against our client being finalised on the basis that judgement is entered in favour of our client, with no order as to costs. In addition, our client will arrange for the expeditious refund to you of the $1,000 holding deposit that you have paid in relation to Lot 2 of the Development (as that term is been defined in our client's evidence) (Offer).
27. The letter went on to state that "[t]he Offer" remained open for acceptance until 5 pm on 19 May 2022. The offer was not accepted.
28. The first respondent submitted that this correspondence in May 2022 supported its position that recovery of the holding deposit by the appellant was not, in truth, in dispute in the proceedings. We do not agree. To the contrary, the letters indicate that recovery of the deposit was not accepted unconditionally by the first respondent and that its return to the appellant was dependent upon the appellant's agreement to the proposed terms of settlement. This conclusion is further supported by the first respondent's failure to return the deposit (in spite of being "open" to doing so) as it could have done at any time prior to the hearing of the proceedings on 31 August 2022.
29. In these outline submissions, dated 17 May 2022, the first respondent contended that the appellant could not have suffered the losses she claimed she suffered flowing from the sale of her existing Claremont Meadows home because she had entered into a contract to sell that property before any of the alleged representations relied upon were said to have been made. As appears below, it was only at the hearing of the proceedings on 31 August 2022 that this flawed position in respect of the appellant's claim was acknowledged to the Tribunal by the appellant.
30. Another issue that was raised in the first respondent's outline submissions was a challenge to the jurisdiction of the Tribunal to determine the claim on the basis that it was not a consumer claim within the meaning of the Fair Trading Act 1987 (NSW) (FTA) because it was a claim concerning the sale of land.
31. This challenge to the jurisdiction of the Tribunal became the subject of a hearing on 20 May 2022 and a judgement issued on 6 July 2022. As explained by the parties who were present at the hearing, the whole of the matter had been fixed for hearing on 20 May 2022 but insufficient time had been allowed and it soon became plain that the only issue which could be dealt with on that day was the issue concerning the jurisdiction of the Tribunal.
32. The Tribunal's reasons for decision concerning the jurisdiction issue refer to the fact that despite the claim for damages totalling $456,970 (and accruing at a rate of $580 per week), subsequently, the appellant had reduced the amount of the claim to $40,000 in acknowledgement of the jurisdictional limit of the Tribunal (paragraph 10 of the reasons).
33. The Tribunal (in an 11 page decision) rejected the respondents' submissions about lack of jurisdiction based upon the matter being concerned with the sale of land and concluded that the respondents supplied services to the appellant within the meaning of s 79F of the FTA and that it was a consumer claim within the meaning of s 79E of the FTA.
34. Shortly before the subsequent hearing of the merits of the claim, by a letter from the first respondent's new solicitors, dated 24 August 2022, marked without prejudice save as to costs, the first respondent reopened the same offer as had been made in the letter, dated 18 May 2022 (referred to above). For the reasons we have already outlined, this letter does not assist the first respondent's argument that the return of the deposit was not in dispute in the proceedings.
35. At the hearing of the merits of the proceedings on 31 August 2022, the following occurred concerning the components of the appellant's claim for damages: 1. In the course of the appellant's evidence in chief concerning corrections to her written evidence, in particular, corrections in respect of her claim that following the making of alleged representations about the deposit she then took steps to sell her existing property in Claremont Meadows, Mr Young of Counsel, who appeared for the appellant, informed the Tribunal it was accepted that the appellant could not claim for loss on the actual sale of her existing property but that the claim in relation to rent was not abandoned (transcript, Appeal Book, page 63.8). 2. After the appellant had completed her oral evidence, including cross-examination, at about 12pm, just before a lunch break, the Tribunal noted that the claim for damages resulting from the property had been removed and requested that upon resumption Counsel for the appellant state what actual damages were now being sought in the claim (transcript, Appeal Book, page 101.9). 3. Upon resumption after the lunch break, by reference to paragraphs 17 and 18 of the Points of Claim, Mr Young explained that the two items being pursued were $1,000 in respect of the holding deposit and $23,575 of the claim for rent, being the claim for rent for the period from 8 December 2020 to 25 September 2021 - the latter date being the date on which the appellant became aware that the property had been sold (transcript, Appeal Book, pages 102.6-103.7). 4. In response to the reference to pursuit of the $1,000 holding deposit, Ms Anderson of Counsel, who appeared for the first respondent, informed the Tribunal that the claim for the deposit was a non-issue and that they were willing to return it, regardless of the outcome (transcript, Appeal Book, pages 103.8-104.3).

The Tribunal's decision

1. The Tribunal's reasons for decision, relevantly, included the following: 1. The Tribunal referred to the reduction in the appellant's claim for damages confirmed at the conclusion of the appellant's presentation of evidence (at [22]) 2. The appellant had made no submissions in relation to the "Lot 2 Representations" and the Tribunal proceeded on the basis that the case based upon these representations was no longer pressed (at [57]). 3. It was noted that both the first and second respondent agreed that the $1,000 holding deposit was to be returned to the appellant and as such an order in respect of this was made by consent (at [59]). 4. The Tribunal was satisfied that the appellant was told by the first respondent, as agent for the second respondent, that if she paid the $1000 holding deposit this would entitle her to be notified when other purchases were interested in the property - this was the evidence of both the appellant and both witnesses for the first respondent. The representations made about the holding deposit were limited to this statement and did not extend to a guarantee about purchasing the property or that it would prevent the property being sold to anyone else (at [62]-[64]). 5. There was no timeframe placed upon the benefit of the holding deposit and it was reasonable for the appellant to conclude that she would be notified of any potential purchaser until the time of return of the deposit. The appellant was not informed of the third-party purchase in July 2021 (at [65]-[67]). 6. The "Deposit Representation" was misleading or deceptive or likely to mislead or deceive as the appellant was informed that upon the payment of the holding deposit she would be told of potential purchases and was not so told ([68]). 7. As to what damages the appellant had suffered as a result of the breach of s 18 of the Australian Consumer Law, the Tribunal rejected the claim for rent for the period from 8 December 2020 to 25 September 2021. It found that at all times between 8 December 2020 and 19 July 2021 there was no evidence before the Tribunal that there were other interested purchasers that the appellant was not informed of and that in this period the appellant was still in a position to negotiate for the purchase of the property. As for the period from 19 July 2021 to 25 September 2021, the appellant had sold her property prior to the "Deposit Representations" and therefore needed to rent a property. If the appellant had been notified of the purchaser in July 2021, there was no evidence to indicate that the appellant was in a position to commence the purchase of an alternative property, and avoid paying rent (at [69]-[77]).
2. The Tribunal's reasons for decision concerning the respondents' application for costs, in summary, were: 1. Rule 38 applied because the initial claim was for $456,970, which was reduced to the jurisdictional limit of $40,000 (as it then was) on 19 April 2022. It was not until after the cross examination of the appellant that the claim was reduced below $30,000. At the commencement of the proceedings the amount claimed was above $30,000 and the respondents were required to prepare to meet a case of that nature and complexity: at [82]-[83]. 2. As to whether the appellant should be awarded costs on the basis that she was the successful party, the Tribunal concluded that she had been unsuccessful in her claim and the respondents had been successful (at [84]-[89]). In this regard, the Tribunal reasoned (in [87]) that the appellant had not been successful in any of her claim for damages, to treat the return of the $1,000 holding deposit as success "would ignore the hard reality of that outcome" and: It would only serve to encourage inflated claims being brought with the thought that a small success would override any costs incurred as a result of having to meet the inflated claim. This would of course be contradictory to the over-riding guiding principle enunciated by s 36 (1) of the Act….

Ground 1- contention that Rule 38 (2) did not apply

1. Relying upon the decision of the Appeal Panel in Carlson v ARA Engine Reconditioning Pty Ltd (No 2) [2020] NSWCATAP 39, the appellant submitted that the amount claimed in the application was not determinative and that because the amount in dispute "at the time of the hearing" was less than $30,000 the amount claimed in the proceedings, within the meaning of Rule 38, was less than $30,000.
2. In Carlson, the claim in the application was for the amount of $10,771 but was increased to more than $30,000 "by the time the matter came before the Tribunal for hearing…" (at [27]). In these circumstances, the Tribunal decided that Rule 38 applied and awarded costs in favour of Mr Carlson, as the successful applicant.
3. This decision does not support the application of Rule 38 to the circumstances of this case, where it was only part way through the hearing itself that the claim was reduced below $30,000.
4. Relying upon the decision of the Appeal Panel in Thornton v Desire Constructions Pty Ltd [2020] NSWCATAP 116 (at [85]-[91]) and the earlier decisions of the Appeal Panel in Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 (TriCare) and Bonita v Shen [2016] NSWCATAP 159, the first respondent submitted that there were two points at which the amount claimed or in dispute was to be identified under Rule 38 (2) (b), being either at the time of the application or at the time of the hearing. The second respondent submitted that, in accordance with these two earlier decisions of the Appeal Panel, it was the amount of the claim in the application that was the relevant amount.
5. The first respondent also referred us to a decision of Senior Member Goldstein in The Owners-Strata Plan No. 92666 v Melkonian Constructions Pty Limited [2023] NSWCATCD (issued on 23 January 2023) in which the Tribunal said that there were "at least" two points when the relevant words in Rule 38 may be ascertained, namely in the application and at the time of the hearing.
6. We consider that Senior Member Goldstein was correct to emphasise that it is "at least" at these two points - an interpretation which, as appears below, is consistent with the reasoning of the Appeal Panel in TriCare.
7. The language of Rule 38 (2) (b) is clear and broad in its scope. It does not provide that the condition for the discretion to be enlivened must exist at any specified point in the proceedings such as at the time of the hearing or at the time of the application commencing the proceedings. The discretionary power arises once the amount of the claim exceeds $30,000, whenever that may occur in the course of the proceedings.
8. Once enlivened, the period in respect of which costs may be awarded, if an issue, is for the Tribunal to determine in the exercise of its discretion. For example, if the amount of a claim in excess of $30,000 is reduced below that amount, in good time before the hearing, an appropriate exercise of the discretion might be, depending upon the circumstances, to deny a successful party an award of the costs of the hearing.
9. As we have indicated, we consider that this interpretation is consistent with the TriCare decision. In that case, the Appeal Panel was not, directly, concerned with any issue as to the specific point in time at which the amount in Rule 38 (2) (b) was to be identified. However, in dealing with the question as to what were the "proceedings", within the meaning of the rule, the Appeal Panel said: 37 These examples from the NCAT Act and the NCAT Rules demonstrate that "proceedings" refers to the process set in motion, or commenced, by lodging an application or notice of appeal. That process includes the steps taken by the Tribunal to hear and determine whether to grant the relief sought in the application or notice of appeal, as well as any interlocutory or ancillary steps. Proceedings are defined by the subject matter raised in the application or notice of appeal. The participants in proceedings are limited to the parties determined in accordance with s 44 of the NCAT Act and the NCAT Rules.
10. Following this authority, the amount claimed or in dispute can meet the required amount to enliven the discretion under the rule at any time in the "process set in motion" by the application, including, but not limited to, the application itself and the hearing.
11. Accordingly, we consider that the Tribunal was correct to conclude that Rule 38 was applicable because the condition in (2) (b) of the rule was satisfied.
12. Accordingly, we reject Ground 1 of the appeal.

Ground 2-contention that the appellant was the successful party

1. As appears from our account of the appellant's claim and the Tribunal's reasons, contrary to the contentions in the Notice of Appeal, the appellant did not succeed in obtaining an award of damages for misleading and deceptive conduct.
2. The appellant also submitted that she succeeded on the following issues: 1. The respondents challenge to the jurisdiction of the Tribunal; 2. She established that the Deposit Representations were in fact made and were misleading or deceptive; 3. She was successful in obtaining an order for the return of the $1,000 deposit.
3. We agree that the appellant was successful in respect of the issues referred to in (1) and (3) above.
4. As to the question of success in respect of the issue referred to in (3), as appears from our analysis of the background circumstances, we do not accept the respondents' argument that return of the deposit was not a real or live issue in the proceedings. Although the order for return of the deposit was not made because the appellant's allegations in her Points of Claim were upheld or conceded, it was only through pursuit of her proceedings to a hearing that she managed to obtain the unqualified concession that the deposit should be returned to her. We regard that as a form of success for the purpose of an exercise of the discretion as to costs. In doing so, we have taken account of the approach referred to by Ward J (as she then was) in Quest Rose Hill Pty Ltd v White [2010] NSWSC 1190 (at [67]), including the question "Had the plaintiff won anything of value or anything he could not have won without fighting the action through to a finish?"
5. We disagree that she was successful in respect of the issues referred to in (2). On the contrary, she was unsuccessful on any of her claims for misleading or deceptive conduct. In the first place, this is because such claims were, relevantly, dependent upon her establishing loss or damage in accordance with s 236 of the ACL, which she failed to do. Secondly, she failed to establish that any of the Deposit Representations were, in fact, made.
6. In her written submissions, the appellant submitted that the Tribunal's findings concerning the making of representations to the appellant represented a considerable vindication for the appellant because: …. She had claimed that throughout 2021 until 25 September 2021 she believed that she would be notified of any potential purchaser until the time of the return of the Holding Deposit. This was the principal issue litigated in the proceedings and the Applicant was successful.
7. However, as appears from our analysis of her claims and the Tribunal's reasons, these submissions are, plainly, not correct.
8. In the context of her claim as a whole, whilst we consider that the appellant achieved a small degree of success in the outcome (in the manner we have described) and success on the issue concerning the jurisdiction of the Tribunal, this is far from accepting that she was the successful party in the proceedings for the purpose of an award of costs in her favour.
9. The appellant submitted that the Tribunal failed to treat the appellant as the successful party because it took a punitive approach to her making an inflated claim. As explained below when dealing with Ground 3, we disagree.
10. However, we do consider that the Tribunal erred by failing to ask itself the right question, namely, whether a mixed outcome approach to the award of costs was warranted, which meant that the appellant gained the benefit of the limited success that she enjoyed. This was an error on a question of law and was wrong in principle.
11. Accordingly, in part, we uphold Ground 2 of the appeal.

Ground 3-contention that a punitive approach was taken to the award of costs

1. In addressing the Tribunal's reasons for decision, we referred to the Tribunal's reference to a consideration against encouraging the making of inflated claims (the third sentence of paragraph 87 of the reasons).
2. The appellant submitted that this revealed an entirely wrong approach to the award of costs, namely that the award of costs should be in effect punitive and that this was an arbitrary and unreasonable approach.
3. We do not accept that the Tribunal approached the award of costs in this manner. Rather, it seems to us that, in essence, the Tribunal legitimately took this factor into account as a factor favouring its evaluation that the appellant was not the successful party.
4. Accordingly, we reject Ground 3 of the appeal.

Ground 4

1. The relevance to the award of costs of the unsuccessful challenge by the respondents to the jurisdiction of the Tribunal was overlooked in arriving at the costs order.
2. This appears to have occurred because it was, apparently, not a point that was relied upon by the appellant in her submissions to the Tribunal at first instance. At the hearing of the appeal, the respondents did not contend that this new point could not be relied upon on appeal. The point is not affected by any controversy as to the facts.
3. There was no real dispute on appeal that the challenge to jurisdiction was a clearly separable issue - an issue of the kind referred to in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38]. According to Bostik and other well-known authorities, where such an issue exists, the ordinary rule in the law of costs against differentiation amongst issues in the proceedings will not prevail.
4. In the first respondent's written submissions it was said that the question in respect of jurisdiction was a separate hearing in respect of which there was no order as to costs. That is correct, but the Tribunal did not at any time address the question of costs in respect of the jurisdictional challenge.
5. There was an error on a question of law and the Tribunal's decision was wrong in principle in not applying this aspect of the law of costs concerning a clearly separable issue.
6. Accordingly, we uphold Ground 4 of the appeal.

Re-exercise of the discretion as to costs

1. For the above reasons in respect of Grounds 2 and 4 of the appeal, we consider that the exercise of the discretion as to costs was affected by error of law and was wrong in principle. Accordingly, the decision should be set aside.
2. Under s 81 (1) (d) of the NCAT Act, the Appeal Panel is empowered to substitute another decision for the one set aside where it considers that to do so is appropriate in light of its decision on the appeal. At the hearing of the appeal, we heard submissions about the decision we should arrive at in the event that we took this approach.
3. We have decided that we should make a costs order in substitution for the Tribunal's order as to costs in terms that the appellant pay the respondents costs in respect of the proceedings at first instance, save for the respondents' costs in relation to the challenge to the jurisdiction of the Tribunal, such costs to be agreed or assessed.
4. In arriving at this result, we have followed the principles concerning an award of costs set out in, for example, Bostik at [38].
5. In doing so, we have taken account of the fact that we consider the proceedings at first instance resulted in a mixed outcome, albeit a mixed outcome in which the appellant achieved very limited success, for reasons we have already explained. However, we have made no reduction to the award of costs to be made to the respondent due to this factor because we are unable to see how there were, or could be, any additional costs incurred by the respondents in respect of the order that was made for the return of the deposit over and above the costs that the respondents incurred in defending the unsuccessful claim for damages for misleading and deceptive conduct of which the return of the deposit was one item of loss or damage.
6. As to the order in respect of the costs of the challenge to the jurisdiction of the Tribunal, we have applied the principle referred to in Bostik that an award of costs would not ordinarily differentiate between particular issues unless a particular issue was clearly separable (or dominant). We consider that the challenge to jurisdiction was a clearly separable issue.

Costs of the appeal

1. We will give the parties an opportunity to make submissions concerning the costs of the appeal, including whether a hearing in respect of such costs should be dispensed with pursuant to s 50 (2) of the NCAT Act, with the consequence that the decision concerning such costs can be determined on the papers.

Orders

1. To the above reasons, we make the following orders: 1. The appeal is allowed, in part. 2. Order 4 of the orders made by the Tribunal on 20 January 2023 is set aside and, in substitution thereof, order that the appellant is to pay the first and second respondents' costs of the proceedings at first instance, save for their costs in relation to the challenge to the jurisdiction of the Tribunal, such costs to be agreed or assessed. 3. Within 10 days of the publication of these reasons, any party that seeks an order in relation to the costs of the appeal is to lodge in the Appeal Registry and serve written submissions in respect of such an application, including submissions concerning whether a hearing in relation to the costs of the appeal should be dispensed with, and written submissions in reply are to be lodged and served within 7 days thereafter. 4. Order 1 of the orders made by the Tribunal on 20 January 2023 is varied by deleting the word "respondent" and inserting the word "applicant". 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: 08 June 2023