Ahmed v Phase Projects Pty Ltd

NCAT Appeal Panel|2024-08-27|Before: Blake AM

Introduction

This decision concerns the Appellant's application for an order that her costs of the appeal be paid by the Respondent. The relevant background is set out in the following paragraphs.
In our decision, Ahmed v Phase Projects Pty Ltd [2024] NSWCATAP 92, we upheld the Appellant's appeal and ordered that her application be remitted for re-hearing limited to consideration of a number of the orders sought as identified in that decision. We also made a direction that, if the Appellant seeks an order for costs of the appeal, she must lodge with the Tribunal an application within 14 days and serve a copy on the Respondent. Subsequently, such an application was received, and we made further directions for the Respondent to make its submissions in response to the Appellant's submissions.

The result of the appeal

As indicated above, the Appellant was successful in that the appeal was upheld and we made an order for the Appellant's application to be remitted for rehearing.
The dispute between the parties concerned whether the Respondent had breached its obligations under a contract between them to provide services to the Appellant in the form of the provision of documents as set out in the written agreement between them.
The reason that the Appellant was successful in the appeal was because we were of the opinion that the Tribunal had failed to exercise its jurisdiction to determine the contractual obligations between the parties.

Appellant's Submissions

The Appellant lodged written submissions in which she sought an order that the Respondent pay the following costs: 1. the lodgement fee for the Notice of Appeal in the sum of $486; 2. the cost of the expert report prepared by Studio Trobec Pty Ltd in the sum of $2,860; 3. her mortgage and rental costs being costs incurred by her as a result of the Respondent allegedly breaching its contract obligations. The Appellant did not provide any written submissions in support of the application for these costs to be paid by the Respondent.

Respondent's Submissions

The Respondent submitted that the general rule in the Tribunal is that each party should pay their own costs unless there are special circumstances warranting an award of costs: s 60(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The Respondent noted that that provision does not apply to these proceedings because the proceedings were lodged in the Consumer and Commercial Division and the amount claimed or in dispute is more than $30,000. Rule 38(2)(a) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) provides that in those kinds of proceedings, the Tribunal may award costs in the absence of special circumstances. The same cost rules apply to an internal appeal from such proceedings: NCAT Rules, r 38A.
The Respondent indicated in its submissions that it did not oppose an order that it pay the $486 filing fee. However, the Respondent opposes the order that the Respondent pay the costs incurred with obtaining the expert report prepared by Studio Trobec. The Respondent submitted that that report was not considered by us in the course of determining the appeal and the receipt of that report into evidence was opposed by the Respondent on the basis that it was late evidence not provided to or considered by the Tribunal at first instance.
With respect to the claim for costs incurred by the Appellant for mortgage and rental costs, the Respondent submitted that they are not costs or disbursements but form the relief sought by the Appellant in the substantive proceeding. The application in that respect should be dismissed.
In short, the Respondent stated that it would pay the filing fee for the appeal but otherwise seeks an order that the Appellant's application be dismissed. Further, the Respondent submitted that it wishes to be heard on the costs incurred in respect of the Appellant's application for costs. The Respondent submitted that the Appellant's application is unreasonable and has put the Respondent to unnecessary costs and expenses. The Respondent submitted that the Appellant should pay the Respondent's costs of the costs' application.

Consideration

For the purpose of r 38A of the NCAT Rules the amount claimed or in dispute is the amount in dispute on appeal, not the amount in dispute in the proceedings at first instance: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [57].
As the Respondent's submissions acknowledge, these proceedings are regulated by r 38A of the NCAT Rules and therefore the Appeal Panel has the discretion of being able to award costs of the appeal, even in the absence of special circumstances.
We propose to make an order dispensing with a hearing on the Appellant's application for costs and to determine the issue of costs on the papers. We note that the Respondent does not oppose that course and we have not received a submission from the Appellant as to whether or not she agrees to or opposes such a course. In any event, we are satisfied that we are able to determine the question of costs on the papers without a further hearing.
As the Respondent consents to an order for costs for the lodgement fee for the Notice of Appeal in the sum of $486, we will make such an order.
The more important question is whether we should make an order that the costs of $2,860 (incurred with Studio Trobec Pty Ltd for the provision of an expert report) be paid by the Respondent. This report was lodged in support of the appeal and constituted new evidence in the appeal. It was not evidence available at first instance. We did not find it necessary to make a determination as to whether the report should be allowed in support of the appeal because we were able to decide the appeal on a basis which did not involve a consideration of the expert's report.
In our view, an order for costs should be limited to costs which are reasonable and necessary. The costs of the report are, in our opinion, neither reasonable nor necessary. The lodgement of the report was not reasonable because it was not accompanied by a persuasive explanation from the Appellant as to why the Appeal Panel should receive it as new evidence. The costs of the report were not necessary because we were able to determine the appeal without reference to the report. We are of the opinion that the Appellant's application for costs of the report should be rejected.
The Appellant's claim for mortgage costs and rental costs forms part of her application for compensation which is part of the case to be determined on the remittal. They are not costs incurred in the prosecution of the appeal. The application for an order that those costs be paid by the Respondent is also rejected.
The Respondent has sought to be heard on the question of whether it should have an order for costs incurred in this costs' application. That application is also rejected. The basis for that submission is that the Appellant's application for costs of the expert report and mortgage and rental costs could not succeed and that the Appellant has acted unreasonably in putting the Respondent to expense in resisting the application.
Our view is that the Respondent should bear its own costs of resisting the Appellant's application. The Appellant has been partly successful in that it has obtained an order that the lodgement fee be reimbursed by the Respondent. Although the balance of the Appellant's application lacks merit, the fact of the partial success points to the appropriate result being that the parties should otherwise bear their own costs.
In the result, the following orders are made: 1. A hearing on costs is dispensed with. 2. The Respondent is to pay the Appellant's costs in the sum of $486.00.

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

Amendments 29 August 2024 - Paragraph 7, numbering format was incorrect. Amendment made. 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: 29 August 2024

Administrative Tribunal Act 2013(NSW)

Administrative Tribunal Rules 2014(NSW)

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