These reasons for decision deal with two applications for costs of the appeal determined by us in Abdelmessiah v Lifestyle Marketing Pty Limited [2023] NSWCATAP 152.
The subject of the above decision was Order 4 of the orders made by the Tribunal on 20 January 2023 (we also corrected Order 1 so that it was the second applicant that was removed from the proceedings), which were as follows:
1. The second respondent is removed from the proceedings.
2. By consent, the first and second respondents are to pay the applicant the sum of $1000, representing the return of the holding deposit, immediately.
3. The applicant's claim for damages is dismissed.
4. The applicant is to pay the first and second respondents' costs as assessed or agreed.
In that decision, we allowed the appeal in part. The outcome of the appeal was that the appellant still had to pay the respondents' costs, except for the costs of an unsuccessful challenge by the respondents to the jurisdiction of the Tribunal to determine the dispute.
Included in the orders we made in determining the appeal were directions for the parties to the appeal to make written submissions concerning any application for costs of the appeal and whether a hearing in respect of any such applications could be dispensed with.
Applications for costs of the appeal and supporting submissions have been made by the second respondent and the appellant. No application for costs of the appeal has been made by the first respondent.
These costs applications are distinct from separate applications made concerning the costs of the appellant's unsuccessful application in the appeal proceedings for a stay of the Tribunal's orders. This stay application was heard on 1 March 2023 and determined by a differently constituted Appeal Panel. On that occasion, some oral argument was heard by that Appeal Panel concerning applications for costs of the stay application and directions were made by the Appeal Panel for the provision of written submissions about those costs. Subsequently, written submissions were provided. It is appropriate that those costs applications be determined by that differently constituted Appeal Panel, albeit with the benefit of our reasons for decision in these costs' applications.
Returning to the costs applications with which we are concerned, both applicants for costs of the appeal submit that a hearing in respect of their applications can be dispensed with and that the applications can be determined on the papers. In these circumstances, and given the nature of the issues involved in the written submissions received, we agree that the applications can be determined on the papers and that we should make an order for a hearing to be dispensed with (s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
Each of these two applications for costs of the appeal have, however, been made on an incorrect basis.
Each applicant contends, incorrectly, that, pursuant to Rule 38A and Rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW), an order for costs of the appeal can be made in the absence of special circumstances (as required by s 60 of the NCAT Act) because, as was established in the substantive appeal, the amount claimed or in dispute in the proceedings at first instance exceeded $30,000.
However, as was determined by the Appeal Panel in Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 (Allen), and followed in many decisions since, the determinative issue concerning these applications is the amount in dispute in the appeal, not the amount in dispute in the proceedings at first instance. As to this, in the Allen decision, the Appeal Panel, relevantly, said (at [57])
57. Adapting these principles to the circumstances of the present appeals and having regard to the specific wording of r 38, it appears to us that in applying r 38(2)(b):
(1) The determinative factor is the amount in dispute in each appeal, not the amount in dispute in the proceedings at first instance;
(2) The phrase "in dispute" is to be construed as meaning truly in dispute or at issue or, inversely, not unrealistically in dispute;
(3) Whether "the amount … in dispute" in each appeal is more than $30,000 depends on whether there is a realistic prospect that in each appeal the wealth of the appealing party would be changed by more than $30,000 or, put another way, whether the right claimed by the appealing party, but denied by the decision at first instance, prejudices that party to an amount in excess of $30,000;
…..
As appears from our decision in the appeal, the amount claimed or in dispute in the proceedings at first instance, in a claim for damages for misleading and deceptive conduct, plainly, exceeded $30,000 up until partway through the hearing at first instance. It was because of this that the Tribunal made an order that the unsuccessful applicant (the appellant) pay the respondents costs, applying Rule 38 (2) (b).
However, the appeal became only concerned with a challenge to the costs order-a matter that the costs applications we are dealing with have, incorrectly, disregarded.
Indirectly, in the sense that this was not referred to in the parties' costs submissions as the amount in dispute on the appeal, the second respondent, in its written submissions, referred to its unassessed legal costs at first instance (the Tribunal's order was for the payment of assessed or agreed costs) in the amount of $37,338.28, excluding GST, and in the amount of $41,072.11, including GST. It also referred to an offer it had made to the appellant in writing to accept the reduced amount of $15,000, on condition that the appellant did not appeal and that this amount was paid within 14 days.
Leaving aside the fact that this material was not put forward in order to demonstrate that the amount in dispute in the appeal exceeded $30,000, this material fails to establish that fact, in any event. On the contrary, given the offer of $15,000, it tends to suggest that the amount truly in dispute in the appeal did not exceed $30,000. This is so, even if one were to include the costs of the challenge to jurisdiction, albeit that on the appeal no substantive arguments were put forward by the respondents as to why the appellant should bear the costs of that unsuccessful challenge.
Under s 60(2) of the NCAT Act, 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. Neither party has proposed, much less established, special circumstances for the award of costs; nor are there any special circumstances otherwise apparent.
Accordingly, the costs applications should be dismissed.
For the above reasons, we make the following orders:
1. A hearing in respect of the costs' applications concerning costs of the appeal, referred to in Orders 2 and 3 below, is dispensed with.
2. The appellant's application for her costs of the appeal to be paid by the respondents is dismissed.
3. The second respondent's application for its costs of the appeal to be paid by the appellant is dismissed.
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
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Decision last updated: 15 August 2023