Antonio v Ian Cubitt's Classic Home Improvements Pty Ltd

NCAT Appeal Panel|2015-12-15|Before: Wright J

Solicitors: Coyne Legal (Appellants) Bartels Business Lawyers (Respondent) File Number(s): AP 15/53946 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer & Commercial Division Date of Decision: 21 August 2015 Before: G Meadows, Senior Member File Number(s): HB 11/10369 HB 14/52444

Introduction

The appellants appeal against a decision made on 21 August 2015 in proceedings HB11/10369 and HB14/52444 in the Consumer and Commercial Division of the Tribunal that "each party is to pay their own costs of the proceedings, subject to previous costs orders".
Although the notice of appeal describes the appellants as "Domingo Antonio & Ors", as we understand it, all of the eight applicants in proceedings HB11/10369, who are also the respondents in proceedings HB14/52444, are appealing against the costs order made on 21 August 2015. We shall refer to the appellants as the Antonio Family.
The respondent in this appeal, Ian Cubitt's Classic Home Improvements Pty Ltd (the Company), was the respondent in proceedings HB11/10369 and the applicant in proceedings HB14/52444.
For the reasons set out below, we have decided that the appeal should be dismissed.

Background

In order to understand the issues raised in this appeal it is necessary to set out the background to the making of the costs order on 21 August 2015 in more detail than might usually be the case.
In about 2008 and 2009 there were initial discussions between the Antonio Family and representatives of the Company concerning home building works in relation to the Antonio Family's home in Dee Why in Sydney. It appears that initially the intent was to rebuild the home so that Mr Domingo Antonio's three adult children and their families could also reside there. An estimated cost of doing such work of about $350,000 was provided by the Company. Because of limited financial resources, the Antonio Family decided not to proceed with that proposal but asked for another proposal from the Company with a limit of $150,000. Eventually, the Company provided a proposal for extensions and renovations with the cost limited to $150,000. Based on that proposal, a document called a "Building Works Agreement No. 17448" (the BWA) was signed by Mr Domingo Antonio (Mr Antonio) and Mr S Blount, a representative of the Company, on 19 November 2009 with a "Total Contract Price (Including GST)" of $150,000 for "1. Extension 2. Renovations".
On 16 February 2010 (at [10] in the reasons for decision of the Tribunal below of 1 May 2015 the date is said to be 6 February 2010 but nothing appears to turn on the difference), Mr Antonio and Mr Blount signed a standard Housing Industry Association "NSW Residential Building Contract for Renovations and Additions" (the HIA Contract) in relation to the building work to be carried out. The Antonio Family paid an amount by way of a part deposit on 3 March 2010 and between February and April 2010 the Company prepared plans and lodged documentation with the local Council for approval. Further documents relating to the building work the subject of the BWA and the HIA Contract were prepared but it was apparently common ground that the contract between the Antonio Family and the Company "was not complete", which we understand to mean that the building work the subject of the contract was never finally agreed between the parties (see [42] of the reasons for decision of 1 May 2015).
On 7 May 2010 at a site meeting (the reference to this occurring on 7 April 2010 in [17] of the Tribunal's reasons for decision of 1 May 2015 appears to be an error), Mr Antonio handed to the Company's representative, Mr Blount, another document headed "Addendum to Building Works Agreement No. 17448" (referred to in the decisions below as "Addendum 2") which had been prepared by Mr Antonio. What exactly occurred at that meeting was disputed.
The Company carried out building work during 2010 but in the latter part of that year the work was suspended or abandoned.
On 25 February 2011 the Antonio Family lodged an application (proceedings HB11/10369) in the Consumer, Trader and Tenancy Tribunal of New South Wales (the CTTT) seeking orders that the Company perform work to an approximate value of $50,000 and pay compensation of $30,000 for inability to use the premises, disruption, pain and suffering.
It was part of the Antonio Family's claim in proceedings HB11/10369 that Addendum 2 formed part of the contract and that all of the items in that addendum were building work to be carried out by the Company for the Antonio Family. The Company denied that Addendum 2 was part of the contract and asserted that, if it had been, this would have substantially increased the cost of the works well above the contracted sum, having regard to the scope of the works set out in that addendum. It was denied by the Company that Addendum 2 had been signed or initialled by anyone from the Company, including Mr Blount.
Given the significance of whether or not Addendum 2 formed part of the contract between the parties, the CTTT decided that there should be a separate hearing in relation to that preliminary question. A major issue at that hearing was whether Mr Blount, on behalf of the Company, had signed Addendum 2.
The Tribunal at first instance recorded in its reasons for decision of 7 March 2013 at [42]: "After the proceedings were filed and while they were being case-managed by the Tribunal in the usual way, the parties agreed to attempt to resolve the factual issue of the signature by obtaining expert evidence. In fact, the Tribunal ordered the parties to do so. Initially the parties agreed on the selection of an expert and the report was intended to be a joint report, but when the report was produced, containing the opinion that the signature (or rather, the initials) were done by Mr Blount, [the Company], perhaps inevitably, decided to obtain its own expert evidence on the ground that the original report appeared to contain errors. [The Company] did so. There were thus two opposing expert reports, the second having been written in response to the first."
After a hearing which was said to have extended over 2½ days, on 7 March 2013, the CTTT determined the preliminary question, finding that "Addendum 2 is not part of the contract". On that same day, the proceedings were listed for directions to set a timetable for hearing the remainder of the application. Although the CTTT found that Addendum 2 was not part of the contract, it nonetheless concluded that Mr Blount had in fact initialled Addendum 2, which had been disputed by the Company. At [51] of his reasons for decision, the Senior Member found that "Mr Blount's initialling addendum 2 was no more than an acknowledgement that he had received that document".
On 30 September 2013, the CTTT made the following costs order in relation to the determination of the preliminary question concerning Addendum 2: "2. [The Antonio Family] is ordered to pay the costs of the [Company] in relation to the preliminary hearing into the authenticity and status of the "Addendum 2" document except for the costs of the [Company] in relation to retaining and calling their expert in relation to the authenticity of Mr Blount's initials on the subject document."
On 28 October 2013 the Antonio Family lodged in the District Court an appeal from the CTTT's order as to costs made on 30 September 2013 (the 2013 Costs Order).
On 1 January 2014, NCAT was established and on its establishment the CTTT was abolished: see s 7 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act) and cl 3 of Sch 1 to the Act. In accordance with the transitional provisions, found largely in Div 3 of Pt 2 of Sch 1 to the Act, cll 6 to 14, this Tribunal could continue to hear and determine the matter, see in particular cl 7 of Sch 1.
On 28 April 2014 Delaney DCJ handed down judgment, dismissing the appeal against the 2013 Costs Order and ordering the Antonio Family to pay the costs of the Company on the appeal as assessed or agreed on the ordinary basis.
The Company then applied for an order for indemnity costs of the appeal to the District Court. On 26 June 2014 Delaney DCJ ordered that the costs of the Company in the appeal be paid by the Antonio Family on an indemnity basis.
Preparation of the matter continued in this Tribunal. On 25 September 2014, the Company filed an application, in effect a cross-application, which became proceedings HB14/52444, seeking an order that the Antonio Family pay the sum of $51,110. The basis for making such an order was said to be set out in the "Attached Points of Claim as Ordered to be filed by Member Meadows in HB11/10369 on 27 November 2013". Attached to the application form was a document headed "CROSS APPLICATION (Filed pursuant to leave granted by Member Meadows on 27 November 2013)". In that cross application, the Company claimed $51,110.32, being "the difference between the amount paid of $101,996.19 and the contract price of $153,106.00 which includes variations and the balance of the unpaid deposit" and, in the alternative, $35,179.51, on a quantum meruit basis for work done but unpaid for. The "balance and cost of the works to be completed under the Agreement" were claimed to amount to $12,247.00 (but the sums claimed actually totalled $12,267.00).
Proceedings HB11/10369 and HB14/52444 were heard together between 18 and 21 November 2014. On 1 May 2015 the Tribunal delivered its decision together with its reasons for decision. Each of the parties was partially successful before the Tribunal. The amount owed to the Company was found to be $12,427.95. The Antonio Family were held to be entitled to recover $25,406.25. After offsetting the amount owed to the Company, the Senior Member at first instance ordered that the Company was to pay the Antonio Family the sum of $12,978.30 within 28 days of the date of the order, that is, by 29 May 2015.
Subsequently, there was a contested application in relation to costs of the two proceedings. In this costs application, the Antonio Family relied upon a statement of Glenn Coyne, the solicitor for the Antonio Family, dated 29 June 2015. This statement had attached to it: 1. A summary of what were said to be the costs and disbursements incurred by the Antonio Family's solicitor in respect of the whole of proceedings HB11/10369 and HB14/52444, including counsel's fees, totalling $55, 329.48. 2. What was said to be "the Bill of costs prepared on behalf of the [Company] in relation to the preliminary hearing" which showed a total for such costs of $320,221.53.
Written submissions were filed and relied upon by both sides. It was submitted on behalf of the Antonio Family that, among other things, the costs order already made in relation to the preliminary question, the 2013 Costs Order, should be reconsidered and set aside by the Tribunal in the circumstances of the case.
As we understand it, neither side made an application for, or submitted that there should be, a lump sum costs order in respect of all or a part of proceedings HB11/10369 and HB14/52444 at this or any other time.

The Decision at First Instance

On 21 August 2015 the Senior Member at first instance ordered that each party was to pay "their own costs of the proceedings, subject to previous costs orders" and provided his reasons for decision (the 2015 Costs Order). The effect of this order was that the 2013 Costs Order remained in effect. It is this decision of 21 August 2015, the 2015 Costs Order, that is the subject of this appeal.
In the course of his reasons for decision handed down on 21 August 2015, the Senior Member at first instance stated the following: "5. The parties have provided detailed submissions in chief and in reply. Although I have carefully read all of those submissions and without intending any disrespect to the parties, I do not consider it necessary to summarise or review them in detail. 6. … In short, it is clear that both parties succeeded in part in their respective applications, but only in part and indeed, particularly in the case of the [Antonio Family] (although this is also true to a lesser extent of the [Company]) in a very small part of their claims. 7. I do note that the [Antonio Family] made particular submissions in relation to a reconsideration or setting aside of the costs orders in regard to the Preliminary Decision and to the possibility of setting off the various costs orders if that is appropriate. … 10. I am not satisfied there is jurisdiction to change or otherwise set aside the costs order of the Preliminary Decision, for the reasons contained in the reply submissions of the builder at paragraphs 5 to 8. In any case, I am not satisfied that the home owners have demonstrated why it would be appropriate to do so. 11. In my opinion the decision in relation to costs of the Substantive Decision is straightforward: neither party succeeded in its claims to an extent justifying an award for costs. Costs are discretionary and pursuant to Regulation 20(4), in these circumstances I do not see fit to make an order for costs. 12. Each party is to pay their own costs of the proceedings, subject to previous costs orders."

The Appeal

On 17 September 2015, the Antonio Family lodged its notice of appeal against the 2015 Costs Order made on 21 August 2015. This was within the 28 day appeal period established by r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (the Rules).

Grounds of Appeal and Orders Sought on Appeal

The grounds of appeal set out in the attachment to the notice of appeal were as follows: "1. The member erred in law in his decision of 21 August 2015 in failing to consider [and] apply section 36(4) of the Civil and Administrative Tribunal Act 2013. 2. The member erred in law in his decision of 21 August 2015 in failing to consider the statement of Glenn Coyne of 30 June 2015; 3. The member erred in law in failing to consider whether the interlocutory costs orders should be revisited at the conclusion of the proceedings; 4. The member erred in law in concluding that he had no power to revisit the interlocutory costs orders made in the proceedings; 5. The member erred in law in failing to consider whether the costs of the interlocutory hearing were to be regarded as costs in the cause of the Respondents; 6. The member erred in law in misdirecting himself as to the absence of jurisdiction to reconsider the interlocutory costs order; 7. The member erred in law in failing to consider whether the costs sought by the Respondents for the preliminary hearing were proportionate to the complexity of the subject matter of the proceedings as required by section 36(4) of the Civil and Administrative Tribunal Act 2013, and whether that order should be reconsidered at the conclusion of the proceedings."
In their notice of appeal, the Antonio Family sought the following orders from the Appeal Panel: "1. Appeal allowed 2. An order that the interlocutory costs order be vacated, and an order that each party pay their own costs of the interlocutory proceedings; 3. An order that the Respondents otherwise pay the Applicants' costs of the proceedings; 4. An order that each party bear their own costs of this Appeal."

The Company's Reply to Appeal

The Company's reply to appeal was filed on 20 October 2015 and raised, among other things, arguments that the Appeal Panel lacked jurisdiction to hear and determine this appeal and that the Antonio Family lacked standing to appeal against the 2015 Costs Order.
The Company, in its reply to appeal, sought that the appeal be dismissed with costs.

Representation and written submissions

Ms I King of counsel appeared for the Antonio Family on the appeal. Mr D Meltz of counsel appeared for the Company. Both parties had filed detailed written submissions which were before the Appeal Panel.
Given the fundamental nature of the challenges to jurisdiction and standing, it is appropriate to deal with them first.

Jurisdiction and Standing Issues

The issues of jurisdiction and standing raised by the Company were interrelated in that the Appeal Panel was said to lack jurisdiction for the same reason that the Antonio Family was said to lack standing to appeal. It was argued that the decision of the Consumer and Commercial Division made on 21 August 2015 was not one that could be appealed to the Appeal Panel as a result of the operation of cl 12(2) of Sch 4 to the Act. The Company contended that cl 12(2) should be construed as restricting the decisions which could be the subject of an internal appeal to the Appeal Panel under s 80 of the Act to those specified in cl 12(2)(a) and (b) of Sch 4.
In particular, the Company submitted that the text of cl 12(2) was very specific. The use of the word "despite" in that clause indicated that there was an intention to restrict the broad right of appeal in s 80 of the Act which might otherwise be available and the other wording of subcl (2) indicated that the restriction was that "[q]uestions of law in the Consumer and Commercial Division can only be appealed to the Appeal Panel if the two instances in 12(2)(a) and (b) are satisfied".
The Appeal Panel is of the view that these challenges to its jurisdiction to hear and determine this appeal and to the standing of the Antonio Family to appeal should be rejected. Before considering the operation of cl 12 of Sch 4 to the Act and whether or not it restricts the operation of s 80 as the Company contended, it is necessary, however, to examine: 1. the legislative foundation for the 2015 Costs Order appealed from; 2. whether s 80 of the Act applies to such a decision made not only in proceedings HB14/52444 commenced in this Tribunal but also in proceedings HB11/10369, which had been commenced in the now abolished CTTT.

Costs in Part Heard former CTTT Proceedings and in NCAT Proceedings

Proceedings HB11/10369 had been commenced in the CTTT in 2011. The preliminary question concerning Addendum 2 had been heard and determined before the CTTT was abolished on 1 January 2014 but the remainder of those proceedings had not been determined by that time. How such proceedings are to be dealt with on the abolition of the CTTT and the creation of NCAT is governed by the transitional provisions, found largely in Div 3 of Pt 2 of Sch 1 to the Act, cll 6 to 14, and in particular cl 7.
Clause 7 of Sch 1 to the Act provides as follows: "7 Pending proceedings before existing tribunals transfer to NCAT (1) Unheard proceedings in an existing tribunal are taken, on and from the establishment day, to have been duly commenced in NCAT and may be heard and determined instead by NCAT. (2) In relation to part heard proceedings in an existing tribunal, the person or persons constituting the tribunal for those proceedings: (a) are to continue, on and from the establishment day, to hear the matter, and to determine the matter, sitting as NCAT, and (b) are taken to have been duly appointed as members of NCAT for the purposes of determining the matter even if the person or persons have not been appointed as members of NCAT by or under another provision of this Act, and (c) may have regard to any record of the proceedings before the existing tribunal, including a record of any evidence taken in the proceedings before the existing tribunal. (3) For the purposes of subclauses (1) and (2): (a) NCAT has and may exercise all the functions that the relevant existing tribunal had immediately before its abolition, and (b) the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted continue to apply."
The expression "part heard proceedings" is defined in cl 6(1) of Sch 1 to the Act as meaning "pending proceedings where the … existing tribunal in which the proceedings were instituted or commenced had begun to hear (but had not determined) the proceedings before the establishment day [1 January 2014]". "Pending proceedings" are also defined in the same clause as follows: "pending proceedings are proceedings (including appeals) that: (a) were instituted or commenced before the establishment day, and (b) have not been finally determined before that day by the court or existing tribunal in which the proceedings were instituted or commenced. Note. See clause 2 (3) as to the meaning of finally determined proceedings."
Proceedings HB11/10369 having been commenced in the CTTT in 2011 and part of those proceedings, the preliminary question, having been determined before 1 January 2014 but the remainder of the proceedings not having been disposed of by that time, those proceedings were "part heard proceedings" and fell to be dealt with under cl 7(2) and (3) of Sch 1. As a consequence, this Tribunal could exercise all of the functions of the CTTT and cl 7(3)(b) operated so that "the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted continue to apply".
As a consequence of cl 7(3)(b), the costs provisions of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (the CTTT Act) and the Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW) (the CTTT Regulation), which were both repealed on the commencement of the NCAT legislation, continue to apply to proceedings HB11/10369.
Section 53 of the CTTT Act dealt with costs in the following terms: "53 Costs (1) Subject to this section and the regulations, the parties in any proceedings are to pay their own costs. (2) The Tribunal may, in accordance with the regulations, award costs in relation to any proceedings. (3) If costs are to be awarded by the Tribunal in accordance with the regulations, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (4) In this section, costs includes the costs of, or incidental to, proceedings. (5) This section does not apply in relation to proceedings under the Strata Schemes Management Act 1996 or the Community Land Management Act 1989."
Clause 20(4) of the CTTT Regulation, as it was immediately before the commencement of the Act on 1 January 2014, relevantly stated as follows: "20 Costs generally (1) This clause applies to the awarding of costs by the Tribunal as provided by section 53 of the Act. … (4) In any proceedings in respect of which the amount claimed or in dispute is more than $30,000, the Tribunal may award costs in relation to the proceedings in such circumstances as it thinks fit. …"
A potential problem could have arisen in this matter as a result of costs in proceedings HB11/10369 being determined by reference to the CTTT costs provisions and costs in proceedings HB14/52444 (commenced in this Tribunal) being determined by reference to the NCAT legislation and, in particular, s 60 of the Act and r 38 of the Rules. As it happens, however, r 38 establishes substantially the same costs regime for the Consumer and Commercial Division of the Tribunal as applied in the CTTT under cl 20 of the CTTT Regulation. Whilst s 60 of the Act provides generally that each party is to bear its own costs (s 60(1)) and costs may be ordered but only if the Tribunal is satisfied that there are "special circumstances warranting an award of costs" (s 60(2)), r 38 of the Rules modifies that position and relevantly provides: "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."
It should be noted that s 35 of the Act expressly states that each of the provisions of Pt 4 of the Act, which includes s 60, "is subject to … the procedural rules". The expression "procedural rules" is defined in s 4(1) as meaning, among other things, "the Tribunal rules" which, in turn, are defined in the same section as meaning "the rules of the Tribunal made by the Rule Committee". The Rules were originally made by NCAT's Rule Committee in February 2014 and remain in force as amended by the Rule Committee from time to time.
The amount in dispute in each of proceedings HB11/10369 and HB14/52444 was more than $30,000. Consequently, whether under cl 20(4) of the CTTT Regulation and r 38 of the Rules, the Tribunal had the power to award costs generally. It is presumably because there was no difference in substance between cl 20(4) and r 38 that neither party appealed against the 2015 Costs Decision on the basis that the Tribunal below referred only to cl 20(4) of the CTTT Regulation and not r 38 of the Rules.

Appeals from Decisions in Part Heard Proceedings Governed by Clause 7

A further issue arises out of the fact that proceedings HB11/10369 were part heard proceedings dealt with under cl 7 of Sch 1 of the Act. It is this: Do the appeal provisions in s 67 of the repealed CTTT Act apply to decisions made in those proceedings because of the operation of cl 7(3)(b)?
This issue was considered in NSW Land and Housing Corporation v Diab [2014] NSWCATAP 8 at [16] to [52]. For the reasons given particularly at [31] to [33] in Diab, the Appeal Panel concluded that the operation of cl 7(3) is limited to the determination of the part heard or unheard proceedings at first instance. That subclause does not apply to appeals from decisions in such proceedings. Following this approach, the Appeal Panel is of the view that any appeal from the costs decision in proceedings HB11/10369 is not required to be made to the District Court under s 67 of the repealed CTTT Act.

Was the 2015 Costs Decision an "Internally Appealable Decision"?

The next question that arises is whether the 2015 Costs Decision, made in both proceedings HB11/10369 and HB14/52444, was an "internally appealable decision" for the purposes of s 80 of the Act. In Diab, the Appeal Panel held that the substantive decision disposing of that matter at first instance was a "general decision" of this Tribunal and thus was an "internally appealable decision" for the purposes of s 80 of the Act, for the reasons given at [35] to [52]. The applicable reasoning to conclude that the costs decision in this case was an "internally appealable decision" is similar to, but slightly different from, the reasoning in Diab.
This Tribunal's internal appeals jurisdiction is established by s 32 of the Act and the right of a party to appeal against an "internally appealable decision" is conferred by s 80. Section 80(1) states: "(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made."
An "internally appealable decision" is defined in s 32(4) as "a decision of the Tribunal or a registrar over which the Tribunal has internal appeal jurisdiction".
Section 32(1) relevantly provides: "(1) The Tribunal has internal appeal jurisdiction over: (a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and ..."
The present appeal concerns a costs decision of the Tribunal made in proceedings brought under the Home Building Act 1989 (NSW) (the HB Act) for compensation and other orders. The proceedings do not involve an administrative review decision. Consequently, the 2015 Costs Decision will be an "internally appealable decision" if it can properly be characterised as a "decision made in proceedings for a general decision" within the meaning of the Act.
Section 29(3) provides: "(3) A general decision of the Tribunal is a decision of the Tribunal determining a matter over which it has general jurisdiction."
Section 29(1) provides: "(1) The Tribunal has general jurisdiction over a matter if: (a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and (b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal."
Both proceedings before the Tribunal at first instance, concerning as they did applications for orders under the HB Act, did not fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal (see ss 30, 32 and 33 respectively) and the HB Act is "legislation (other than this Act or the procedural rules)" enabling the Tribunal "to make decisions or exercise other functions ... of a kind specified by the legislation in respect of" the matters in question in the proceedings at first instance. It does not matter that in proceedings HB11/10369, this Tribunal could only determine this matter by reason of the transitional provisions in Sch 1 to the Act. The CTTT's power, and this Tribunal's derivative power based on cl 7 of Sch 1, to hear and determine the matter were both founded upon the HB Act. Similarly, the Tribunal's power to hear and determine proceedings HB14/52444 was based on the provisions of the HB Act which now refer to this Tribunal rather than the CTTT. Thus, both sets of proceedings were proceedings for a decision determining a matter over which the Tribunal has general jurisdiction, falling within s 29(3), and proceedings for a "general decision" within s 29(1).
Costs decisions, such as the order the subject of the present appeal, are "ancillary decisions", as that term is defined in s 4(1) of the Act, and the Tribunal has jurisdiction to make such ancillary decisions when exercising its general jurisdiction, by virtue of s 29(2), which provides, in part, that: "2 The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction: (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, …."
Consequently, the 2015 Costs Decision made in both sets of proceedings was a "decision made by the Tribunal in proceedings for a general decision" within s 32(1) and thus an "internally appealable decision" within the meaning of ss 32(4) and 80(1).

The Effect of Clause 12(2) of Schedule 4 to the Act in the Present Case

The present appeal is therefore an internal appeal under s 80 of the Act, which provides as follows: "80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note : Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1). (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances."
It will be noted that it is subs (1) of s 80 which confers the right of appeal. Section 80(2) then establishes the circumstances in which any appeal is as of right and those in which leave is required. The decision under appeal, as it a decision concerning the awarding of costs, is an ancillary under s 4(1) of the Act. Therefore under s 80(2)(b) a party may appeal as of right on any question of law and by leave on any other grounds.
As noted above, the Company submitted that the Appeal Panel could not hear this appeal because of the limitation in Sch 4 to the Act on internal appeals from decisions of the Consumer and Commercial Division of the Tribunal. Schedule 4 is a "Division Schedule" within the meaning of s 17(1) of the Act because it "provides for the composition and functions of [the Consumer and Commercial] Division". Section 17(3) provides: "(3) The provisions of a Division Schedule for a Division of the Tribunal prevail to the extent of any inconsistency between those provisions and any other provisions of this Act or the provisions of the procedural rules."
Accordingly, to the extent of any inconsistency, the provisions of cl 12 of Sch 4 prevail over the provisions of s 80 of the Act.
Clause 12 of Sch 4 deals with internal appeals from decisions of the Consumer and Commercial Division as follows: "12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). Note. Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. (2) Despite section 80 (2) (b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if: (a) the appellant is a corporation and the appeal relates to a dispute in respect of which the Tribunal at first instance had jurisdiction because of the operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010, or (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order."
Having regard to the wording of cl 12(2), the Company submitted that the Appeal Panel could not hear an appeal from the Commercial and Consumer Division of the Tribunal, even on a question of law, unless the appeal fell within one or other of the two categories of appeals set out in cl 12(2)(a) and (b). In other words, it was contended that cl 12(2)(a) and (b) specified the only appeals that could be made from a Commercial and Consumer Division decision to the Appeal Panel.
In our view this construction of cl 12(2) should be rejected. That subclause of cl 12 must be construed not only by reference to its precise wording but also by reference to its immediate context in cl 12 and s 80 of the Act and the scope and purpose of the Act as a whole.
Section 80(1) confers on a party to proceedings a right of internal appeal to the Appeal Panel of the Tribunal in relation to decisions of the Consumer and Commercial Division, as well as other Divisions of the Tribunal. Section 80(2) then imposes a leave requirement in respect of appeals from interlocutory decisions and from other decisions where the appeal is on a ground other than a question of law. This can be modified by the Division Schedules, because of s 17(3).
Clause 12 is found in the Division Schedule for the Consumer and Commercial Division, Schedule 4. Clause 12(1) restricts the circumstances in which the Appeal Panel can grant leave to appeal from decisions of the Consumer and Commercial Division. It necessarily follows from this that the legislature must have intended that at least some decisions of the Consumer and Commercial Division could be appealed if the Appeal Panel granted leave. Consequently, a construction of cl 12(2) which denied the ability of a party to appeal, with leave of the Appeal Panel, from any decision of that Division would be very unlikely to be correct.
The wording of cl 12(2) is not without its difficulties and it is possibly open to construe its words as meaning, as the Company contended, that: 1. notwithstanding that a party might generally be able to appeal from a non-interlocutory order with leave under s 80(2)(b); 2. an appeal against a decision of the Consumer and Commercial Division may only be made if one of the two situations listed in cl 12(2)(a) and (b) is satisfied; 3. such an appeal would be limited to an appeal on a question of law; and 4. no appeal would be available, even with leave, on grounds other than a question of law.
This construction would have the consequence that the right of appeal from decisions of the Consumer and Commercial Division would be extremely limited. Not only would they be limited to appeals on a question of law but they would also be limited to decisions under the jurisdiction conferred because of the operation of Sch 3 to the Credit (Commonwealth Powers) Act 2010 (NSW) and a decision terminating a tenancy under the Residential Tenancies Act 2010 (NSW) where a warrant of possession has been executed in relation to that termination. It is difficult to discern why those decisions would be permitted to be internally appealed whereas all of the other decisions made in the extremely broad jurisdiction of the Consumer and Commercial Division would not. A list of some of the legislation under which the Division has jurisdiction is found in cl 3(1) of the Consumer and Commercial Division's Division Schedule, Sch 4 to the Act.
This construction would also lead to the situation that no appeal could be brought by leave against a decision of the Consumer and Commercial Division. As a consequence, the provisions found in cl 12(1) would be unnecessary and, indeed, it would have been quite illogical for the Parliament to have included them. In addition, if this construction were correct, the reference to s 80(2)(b) in the introductory phrase "[d]espite section 80(2)(b)" would be inappropriate as that paragraph deals only with non-interlocutory decision, whereas the Company's construction would remove the ability of a party to appeal with leave from interlocutory decisions conferred by s 80(1) and (2)(a). If the company were correct, the introductory words to cl 12(2) should have referred to s 80(1) and (2) not just s 80(2)(b).
There is, however, an alternative construction of cl 12(2) of Sch 4 which is available having regard to the text of that subclause, its context and the scope and purpose of the Act as whole. It is this construction that the Appeal Panel believes is preferable. It is to the following effect: 1. notwithstanding that a party might generally be able to appeal from a non-interlocutory order on grounds other than a question of law with leave, under s 80(2)(b); 2. if the appeal falls into either category referred to in cl 12(2)(a) or (b) then: 1. an internal appeal may only be made on a question of law; and 2. an appeal may not be made on any other grounds, even with leave.
Such a construction would not restrict the right of a party to appeal with leave or as of right under s 80(1) and (2) from most decisions of the Consumer and Commercial Division. The restriction in cl 12(2) would be limited just to those types of appeal that fall within paras (a) and (b) of that subclause. Further, cl 12(1) would serve a useful purpose and the reference to s 80(2)(b) in the introductory words would be more understandable, even if it still did leave the question of whether leave could be granted to appeal in respect of interlocutory decisions which are dealt with under s 80(2)(a) and not (b).
When faced with the two such alternative constructions, the Appeal Panel is of the view that the construction which accords with preserving internal appeal rights from the vast majority of cases heard in the Consumer and Commercial Division and which gives meaningful work for cl 12(1) to do must be preferred.
The Appeal Panel notes that its preferred construction is also consistent with the Second Reading Speech when the Bill that included s 80 and Sch 4 in their present form was introduced into Parliament and this may be taken into account under s 34(2)(f) of the Interpretation Act 1987 (NSW). The Attorney-General stated: "The [Tribunal] will also have an appeal jurisdiction, which will enable the tribunal's appeal panel to quickly and efficiently hear appeals against most decisions made within the tribunal" (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 October 2013 at 25097). The Company's proposed construction would prevent appeals to the Appeal Panel from most decisions of the Consumer and Commercial Division of the Tribunal, which accounts for more than 80% of the Tribunal's caseload (by number of applications). This is highly unlikely to have been intended by the legislature.

Conclusion on Jurisdiction and Standing

On this basis, the Appeal Panel finds that it has jurisdiction to hear this appeal and the Antonio Family have standing, as a party to the original proceedings, to bring this appeal.
The Appeal Panel now turns to consider the appeal and each of the grounds of appeal raised by the Antonio Family.

The nature of the appeal

Ms King acknowledged in the course of oral argument that the Tribunal at first instance had a wide discretion as to costs under the applicable legislative provisions and that the Company's challenge to the exercise of this discretionary power as to costs at first instance was subject to the constraints inherent in the principles set out in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505. Dixon, Evatt and McTiernan JJ there stated as follows: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error had 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 at 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, 2 and 7

Grounds 1, 2 and 7 all related to the proposition that the Tribunal below erred in law by failing to consider and apply s 36(4) of the Act and to consider the evidence relevant to that subsection. In effect, grounds 2 and 7 gave more particularity to ground 1. Ground 2 identified the evidence which the Tribunal was said to have failed to consider, being the statement of Mr Coyne referred to above and the Company's bill of costs attached to that statement. According to Mr Coyne the bill of costs, which totalled $320,221.53, related to the costs of the preliminary hearing. Ground 7 was the contention that the Tribunal failed to consider whether the costs sought by the Company for the preliminary hearing, which were said to be disclosed in the bill of costs, were proportionate to the complexity of the subject matter of the proceedings, reflecting the wording of s 36(4).
The substance of the Antonio's Family's submission in this regard was that the Tribunal below: "misdirected himself as to the applicability of s 36 of the NCAT Act, and consequently did not consider the evidence of the disproportion between the costs alleged to have been incurred by the [Company] in the interlocutory proceedings, and the amount in dispute in the proceedings overall."
The Company submitted that s 36(4) of the Act did not apply because the proceedings had been commenced in the CTTT and that this Tribunal had power to determine them only because of cl 7 of Sch 1 to the Act. Under cl 7(3), the CTTT Act and CTTT Regulation continued to apply in proceedings HB11/10369 rather than the NCAT legislation which contains s 36(4). It was said that acceptance of this position was inherent in the Antonio Family's other submissions as to the basis on which costs could be awarded.
Further, the Company submitted that, even if s 36(4) did apply, the Tribunal below had taken it into account to the extent that it was raised in the Antonio Family's submissions and that the amount of the bill of costs did not demonstrate lack of proportionality as claimed given that the bill was the subject of an assessment by a costs assessor which was not complete.
Section 36(4) of the Act provides as follows: "(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings."
There was no corresponding provision in the CTTT Act or the CTTT Regulation.
The Appeal Panel accepts that, when dealing with matters of practice and procedure which include, for present purposes, issues relating to costs, the Tribunal should act and make decisions so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject‑matter of the proceedings.
Moreover, for the purposes of this appeal and without deciding the question, the Appeal Panel is prepared to proceed on the basis that the general consideration set out in s 36(4) of the Act could be relevant, depending on the circumstances, to the exercise of its discretion as to costs in both sets of proceedings the subject of the present appeal, notwithstanding the terms of cl 7(3) of Sch 1 to the Act.
As to ground 1 that the Tribunal failed to consider and apply s 36(4), the Appeal Panel notes that s 36(4) was expressly referred to at para 8 in the Antonio Family's written submissions at first instance in relation to costs. The submission was also made, at para 9, that the "amount of legal fees claimed by the [Company] is grossly excessive compared to the importance and complexity of proceedings" and this is clearly based on the wording of s 36(4). In addition, s 36(4) was mentioned in the Company's submissions in reply at para 6.
Thus, s 36(4) and its application in the present matter were expressly raised in the submission made below. In these circumstances, it is significant that at [5] of the decision at first instance the Senior Member stated that he had carefully read all of the submissions made by the parties which included the references to s 36(4) and how it might apply in the present case. The Antonio Family did not point to any material which would indicate that the Senior Member had not done as he recorded at [5] or that he had not considered those submissions appropriately. Further, his decision cannot properly be said to be so manifestly inconsistent with s 36(4) as it might apply in the circumstances of this case that it should be concluded that he failed to consider and apply that section.
Taking into account these matters, the Appeal Panel cannot accept the Antonio Family's contention that s 36(4) was not taken into account, or was not considered and applied, by the Senior Member in exercising his discretion in relation to the costs of the proceedings and making the 2015 Costs Order. The appeal in so far as it is based on ground 1 should therefore be dismissed.
Under ground 2, the Antonio Family contended that the Tribunal below failed to consider the statement of Mr Coyne. As the Appeal Panel understands it, the principal significance of Mr Coyne's statement was that it had attached to it bill of costs claimed by the Company. Once again, it can be observed that the written submissions of counsel for the Antonio Family at first instance, at para 7, referred to the Antonio Family having "received a bill of costs of $320,221.53", which was also a reference to the bill attached to Mr Coyne's statement. That statement was also referred to expressly in footnote 8 of those submissions and the amount of the legal fees claimed by the Company, derived from the bill of costs, was described in para 9 as "grossly excessive compared to the importance and complexity of proceedings". The bill of costs was also referred to in para 14 of the submissions in reply of the Company where it was also said: "An untaxed bill of costs is just that: an untaxed bill of costs. In any event, the bill of costs is presently before an assessor. The reasonableness of otherwise of the [Company's] costs will be determined in the proper forum by an authorized assessor."
Thus it is apparent that the statement of Mr Coyne and the attached bill of costs claimed by the Company were explicitly raised in the submissions before the Tribunal below. And, once again, the Appeal Panel notes that the Senior Member below stated in [5] of his reasons that he had carefully read those submissions. There was no material which suggested to us in any way that this was incorrect. Further, it could not reasonably be inferred from the conclusion reached by the Tribunal or from the reasons for decision that the Senior Member had not taken into account Mr Coyne's evidence and in particular the bill of costs.
In the circumstances, the Appeal Panel is of the view that the Antonio Family has not established that the Tribunal below did not consider the statement of Mr Coyne and the unassessed bill of costs attached to it and, accordingly, the Antonio Family's ground 2 should also be rejected.
In so far as ground 7 raised the contention that the Tribunal below failed to consider whether the costs sought by the Company for the preliminary hearing were proportionate to the complexity of the subject matter of the proceedings as required by section 36(4) of the Act, it relied, in essence, on the same arguments and material as grounds 1 and 2. The Appeal Panel does not accept that this ground has been made out for the reasons already given in relation to grounds 1 and 2.
Further, the Antonio Family's submissions appeared to assume, implicitly, that the mere fact that the Company had claimed a large sum as costs recoverable under the 2013 Costs Order could establish that the decision in the 2015 Costs Order not to set aside or vary the 2013 Costs Order was inconsistent with the proper application of s 36(4). Such an assumption is unfounded. What is claimed by way of costs ordered to be paid on the ordinary, party/party basis (such as occurred under the 2013 Costs Order) does not bear any necessary relation to the costs that might actually be found to be due under such an order. The High Court in Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 explained why this was so in the following terms at [25]: "Further, although capable of estimation, the actual monetary value of an award of costs cannot be ascertained until those costs are taxed or otherwise assessed."
In the Appeal Panel's view, the Antonio Family's apparent reliance on the bill of costs claimed by the Company without any indication of what amount was, or would be likely to be, assessed as due after the costs assessment process had been completed was misguided. The mere fact that the Company may have claimed a very large sum of money for costs ordered to be paid under the 2013 Costs Order does not establish that the Tribunal below must, or was likely to have, made an error in not setting aside or varying that order when the costs for the remainder of the proceedings were under consideration. The amount claimed and the amount actually determined to be due after the completion of the assessment process may be very different. Indeed, the Company in its submissions stated, albeit without any supporting evidence to which the Appeal Panel was taken, at para 58 ii that: "… the [Antonio Family's] own cost assessor has assessed the costs of the preliminary hearing at an amount substantially below that claimed by the [Company] (approximately $67,000)."
Finally, it appears to the Appeal Panel that the Antonio Family's submissions on this and various other grounds may have proceeded on a misunderstanding of the facts. Mr Coyne in his statement described the bill as "the Bill of costs prepared on behalf of the [Company] in relation to the preliminary hearing". At para 5 of their submissions before the Appeal Panel, Ms King refers to "a bill of costs of $320,221.53 in relation to that order" and "that order" is a reference to the "interlocutory costs order … made following the determination of the preliminary issue" described in para 4. Similarly, in the submissions in the Tribunal below, the impression is conveyed that the bill of costs of $320,221.53 relates entirely to the costs claimed by the Company by reason of the costs order made in relation to the determination of the preliminary issue. A brief review of the bill of costs suggests to the Appeal Panel that it may have included more than merely those costs of and incidental to the determination of the preliminary issue. For example, it appears to include costs and expenses incurred relating to: 1. Directions hearings in the CTTT for the further preparation of the matter for final hearing (items 677 - 680); 2. the District Court appeal (items 681, 682, 700, 707) which is covered by the costs order made by that Court.
The parties did not, however, undertake any analysis of what the bill of costs attached to Mr Coyne's statement covered nor were any submissions made concerning that matter. In these circumstances, the Appeal Panel refrains from basing any of its conclusions on its observations concerning items in the bill of costs and what costs that bill was intended to cover.
Nonetheless, for the other reasons already given, the appeal based on grounds 1, 2 and 7 should be dismissed.

Ground of Appeal 3

The Antonio Family's third ground of appeal was that the Tribunal below erred in law in failing to consider whether the "interlocutory costs order" should be revisited at the conclusion of the proceedings.
In our view there is no substance in this ground of appeal. At [7] in the reasons for decision of 21 August 2015, the Senior Member at first instance expressly noted the submission of the Antonio Family concerning reconsideration or setting aside of the 2013 Costs Order. At [10], the Senior Member expressed his conclusion. Those paragraphs were in the following terms: "7. I do note that the [Antonio Family] made particular submissions in relation to a reconsideration or setting aside of the costs orders in regard to the Preliminary Decision and to the possibility of setting off the various costs orders if that is appropriate. … 10. I am not satisfied there is jurisdiction to change or otherwise set aside the costs order of the Preliminary Decision, for the reasons contained in the reply submissions of the builder at paragraphs 5 to 8. In any case, I am not satisfied that the home owners have demonstrated why it would be appropriate to do so."
These paragraphs put it beyond reasonable dispute that the Senior Member at first instance did expressly consider whether the 2013 Costs Order should be revisited at the conclusion of the proceedings. Although the Senior Member's stated reasoning was brief, there is no reason to doubt that he considered the issue.
For these reasons, the appeal so far as it is based on ground 3 should be rejected.

Grounds of Appeal 4 and 6:

Grounds 4 and 6 both raise the issue of whether the Tribunal below erred in law in concluding that he had no power or jurisdiction to revisit the interlocutory costs order.
At [10] of his reasons for decision dated 21 August 2015, the Senior Member at first instance stated as follows: "10. I am not satisfied there is jurisdiction to change or otherwise set aside the costs order of the Preliminary Decision, for the reasons contained in the reply submissions of the [Company] at paragraphs 5 to 8. …"
Those paragraphs in the reply submission of the Company were as follows: "5. The applicants' argument that the NCAT has power to reconsider an interlocutory decision by virtue of s.98(3) of the Civil Procedure Act 2005 (NSW) because such power 'is vested in the Tribunal [and] is implicit in the judgment of Judge Delaney' is a novel submission on legislative interpretation. The Civil Procedure Act does not apply to the proceedings of the NCAT, nor did it apply to the CTTT. 6. The Applicants further reliance on s.36(4) of the CAT Act as to the NCAT's duty to facilitate the resolution of issues so that cost is proportionate in a non sequitur. The applicants accept the CTTT Act applies to these proceedings; the CAT Act does not apply. 7. The extract of the judgment in which Judge Delaney states that "the final orders as to costs will be made when the proceedings are concluded" reflects precisely the present position; namely, once the substantive proceedings are heard and determined final orders will be made in relation to those substantive proceedings. Nothing in the judgment provides for a re-determination by the Tribunal of the previous orders made following from the preliminary hearing. In fact the Delaney J stated: The Tribunal decided it had power to award the costs of that issue at that stage of the proceedings. It had the power to do so. … The Tribunal has the power to order costs on a preliminary issue. Its discretion is unfettered. The submission that the Tribunal should not have made the order for costs at this point in the proceedings has no basis. The Tribunal had the jurisdiction to make the order and had the power to do so. 8. The context in which the Preliminary Costs Orders were made must also be briefly restated. The preliminary hearing went for 2.5 days. The final half-day of the preliminary hearing was delayed because the applicants' handwriting expert failed to appear at the scheduled hearing and since both experts had to be cross-examined together there were months of delays before completing the preliminary hearing."
It was submitted on behalf of the Antonio Family that the Tribunal below was in error in this regard and the Tribunal had power to change or otherwise set aside the 2013 Costs Order. The substance of the Antonio Family's argument in this regard was that the order in question was an "interlocutory costs order" and interlocutory orders could be reviewed and varied or rescinded if appropriate, relying on Rajski and Raybos Australia Ltd v Carson and Tectran Corporation [2002] NSWCA 51 at [14].
The Company submitted that there was no such power to do so as the preliminary decision of the CTTT meant that in relation to the costs of the preliminary decision, it was now res judicata or an issue estoppel arose. In addition, it was noted that the 2013 Costs Order had been appealed to the District Court and that Court had dismissed the appeal and upheld the order.
The Appeal Panel has some difficulties with the Antonio Family's argument. First, whilst the determination of the preliminary question occurred before the final hearing of the matter as a whole, the Tribunal's decision in relation to the preliminary question was not an interlocutory decision. That decision finally determined the question of whether Addendum 2 formed part of the contract in question.
In addition, an order for costs in relation to that issue would not normally be classified as an interlocutory decision in the Tribunal. Section 4(1) of the Act contains the following definition: "interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following: (a) the granting of a stay or adjournment, (b) the prohibition or restriction of the disclosure, broadcast or publication of matters, (c) the issue of a summons, (d) the extension of time for any matter (including for the lodgment of an application or appeal), (e) an evidential matter, (f) the disqualification of any member, (g) the joinder or misjoinder of a party to proceedings, (h) the summary dismissal of proceedings, (i) any other interlocutory issue before the Tribunal."
None of the paragraphs in that definition is applicable to the 2013 Costs Order. Furthermore, a decision concerning the awarding of costs in proceedings is included in the definition of an "ancillary decision" under s 4(1) of the Act. Thus, the Appeal Panel doubts that the 2013 Costs Order should be characterised as an interlocutory decision. It can be seen as finally determining the rights of the parties in relation to the question of costs of that part of the proceedings.
Secondly, the Court of Appeal's decision in Rajski and Raybos Australia Ltd v Carson and Tectran Corporation [2002] NSWCA 51 at [14], upon which the Antonio Family relied, does not necessarily support the conclusion that the 2013 Costs Order could have been set aside in the present case. The Court of Appeal stated at [14]: "14 The law has always been and still is that the Court has power and almost a duty to review all interlocutory orders, other than those which decide the rights of parties, so that they may be varied or rescinded whenever circumstances change sufficiently; see eg Wilkshire v Commonwealth (1976) 9 ALR 325, 331-332; Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126, 134."
It is certainly arguable that the 2013 Costs Order relevantly decided the rights of the parties in this case and accordingly would fall within the exception identified by the Court of Appeal in the words "other than those which decide the rights of parties". In addition, the underlying assumption of the Court is that a variation or rescission might be justified on the basis that the relevant circumstances had changed sufficiently. The circumstances upon which the 2013 Costs Order depended were all, however, in the past. Those circumstances were never going to change. Accordingly, it appears that the issue that the Court of Appeal was addressing might well be quite different from the issue before the Tribunal at first instance in this matter.
On the other hand, however, the Appeal Panel notes that in Chaina v Presbyterian Church (NSW) Property Trust (No.26) [2014] NSWSC 1009 at [68(i)] Davies J set aside all previous costs orders in a matter in order to make a gross sum costs order. That was not, however, the application made in this case. Nor was this decision or this approach the subject of any submissions by the parties before the Appeal Panel.
It is not, however, necessary for us to decide whether or not a costs order made in relation to a discrete issue before the final determination of proceedings can be set aside when costs are being considered after the final determination. This is because deciding that issue will make no difference to the outcome of this appeal. Although the Tribunal below said at [10] that it was not satisfied that it had "jurisdiction to change or otherwise set aside the costs order of the Preliminary Decision", the Senior Member then went on to consider what he would have decided in relation to that issue, if the Tribunal did have the power to do so. In the last sentence at [10], it was held: "In any case, I am not satisfied that the [Antonio Family] have demonstrated why it would be appropriate to do so [change or otherwise set aside the costs order of the preliminary decision]."
Ms King, for the Antonio Family, submitted that this sentence in the reasons for decision did not mean that the Senior Member was expressing a conclusion as to whether he would change or set aside the costs order in relation to the preliminary decision if, contrary to his view earlier in that paragraph, he did have the power to do so. We do not accept that submission. On a fair reading of [10] of the reasons for decision, we believe that is in essence what the Senior Member below meant. It is difficult to see what else the last sentence of [10] could mean in the circumstances.
There was no ground of appeal which challenged that part of the Tribunal's reasoning or which contended that such a conclusion was in error. Even if there had been, we would not find that there was any error of law in this regard, having regard to all the circumstances of this matter referred to in these reasons. Nor would we be of the view that the Antonio Family has demonstrated that there was a flaw in the reasoning or the exercise of the discretion, if it existed, to decide whether or not to set aside or interfere with the 2013 Costs Order such as would fall within the principles in House v The King.
The Appeal Panel also notes that the Antonio Family sought to rely in this regard on the judgment of 28 April 2014 of Delaney DCJ in the District Court appeal where his Honour stated at [5] inter alia as follows: "The final orders as to costs will be made when the proceedings are concluded." It was argued that this supported the conclusion that the 2013 Costs Order would or could be varied or set aside by the Tribunal when considering costs after the whole of the proceedings had been finally determined. In our view, Delaney DCJ's comment does not assist the Antonio Family. What his Honour said amounted to no more than an accurate statement of what could occur - that final orders as to costs in respect of the remainder of the proceedings would be made when the proceedings as a whole were concluded. This is what did occur. In any event, this comment does not mandate that the 2013 Costs Order should be revised or altered at the conclusion of the proceedings. The Tribunal below held that, even if there was power to vary the 2013 Costs Order, no basis for doing so had been established. There was no appeal from, or error affecting, that conclusion.
For these reasons, we would dismiss the appeal in so far as it was based on grounds 4 and 6.

Ground of Appeal 5

The fifth ground of appeal raised the issue of whether the Tribunal below erred in law by failing to consider whether the costs of the interlocutory hearing were to be regarded as costs in the cause of the Company.
Counsel for the Antonio Family submitted that the order made by the CTTT on 30 September 2013 could be regarded as being an order that the costs of the preliminary hearing be the Company's costs in the cause. It was submitted that the usual presumption is that any interlocutory costs order is costs in the cause. Reliance was placed on the statements by the Court of Appeal in His Eminence Metropolitan Petar Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v the Macedonian Orthodox Community Church St Petka Incorporated (No. 2) [2007] NSWCA 142 at [20]-[26] which were as follows: "20 In Boscolo v TCN Channel Nine Pty Limited (No 2) (New South Wales Supreme Court, Eq Div, 28 April 1994, unreported) Young J (as his Honour then was) dealt with costs in relation to an application for an interlocutory injunction. The application had been commenced ex parte but during the course of the ex parte hearing, legal representatives for the defendants arrived at Court and sought to be heard. His Honour permitted that course so that the matter became a contested application for an interlocutory injunction. In respect of costs, his Honour said: Although costs are always in the discretion of the court, the usual rule that is applied in the exercise of the court's discretion is that if a person succeeds in getting an interlocutory injunction costs should be costs in the cause ... 21 His Honour did not explain the basis of the rule. That is not of itself unexpected, as practices grow up within particular jurisdictions which routinely deal with a particular type of application. The rationale for making an order that costs be costs in the cause is that, at the stage of granting an interlocutory injunction, the court is not in a position to adjudicate on the ultimate outcome of the proceedings. Rather, provided there is a reasonable case to be tried, the Court's focus in deciding whether to grant the application for interlocutory relief is on other considerations and, in particular, on determining whether, on the balance of convenience, an injunction ought to be granted. Accordingly, if a plaintiff who applies for an interlocutory injunction is not ultimately successful in the proceedings, that plaintiff should not receive the costs of the application for an injunction which, when the matter is considered in overview cannot be sustained. However, as already explained, each case must depend upon its own facts. 22 Metropolitan Petar submits that the "usual practice" referred to in Boscolo and upon which the first respondents rely does not represent the entirety of the jurisprudence in this area, and that in accordance with both principle and practice of the courts at first instance the order that ought to be made is that the costs of the hearing of the Notice of Motion at first instance should be their costs in the cause. An order that costs be a party's costs in the cause or the proceedings, for example, a plaintiff's costs in the proceedings, means that if that party succeeds on the final hearing, then that party is awarded the costs of the interlocutory proceedings: Stratford v Lindley at 1153, but if that party loses on the final hearing, it will not be liable to pay the costs of the other party on the interlocutory hearing. 23 In Devereaux Holdings Pty Limited v Pelsart Resources NL (No 2) (Supreme Court of New South Wales Eq Div, 24 July 1985, unreported), an earlier decision of Young J, his Honour was concerned with the question as to the costs order that should be made when an interlocutory injunction is granted but the proceedings are dismissed on final hearing. His Honour observed (at 2) that there were not any definitive rules governing that circumstance, but that the following seemed to be "what commonly happens". Relevantly for present purposes, his Honour stated: (a) If the material before the Judge on the interlocutory hearing discloses that there is an arguable or prima facie case and it is more or less conceded in argument that such is the case so that an interlocutory injunction is granted, then costs of the interlocutory injunction are costs in the cause, though sometimes they may be made plaintiff's costs in the cause; (b) If in the situation set out in (a), the defendant does not concede the inevitability of an interlocutory injunction being granted, then the proper order is that the plaintiff's costs be his costs in the cause, or even that the defendant pay the plaintiff's costs in any event ... (Emphasis added) 24 Young J, in determining what costs order should be made in the matter before him, stated: ... I think it follows from what I have said above that the defendant being successful in the action, it should not have to pay any of the plaintiff's costs. This is because unless there was some extraordinary factor, the appropriate order on the interlocutory motion would have been either that the costs would have been costs in the cause, or alternatively, plaintiff's costs in the cause. 25 In Ausino International Pty Limited v Apex Sports Pty Limited [2006] NSWSC 1119 Campbell J (as his Honour then was) stated: [55] ... the present proceedings before me are brought on the basis that they are an interlocutory process. The usual order which is made as to costs concerning interlocutory processes, is that if the plaintiff is the applicant, and succeeds, then the costs of the interlocutory process become the plaintiff's costs in the cause, while, if the plaintiff is the applicant, and loses, the usual order is that the plaintiff pay the defendant's costs of that application. [56] The rationale for that arises from the way that interlocutory proceedings are intended to advance the final hearing. If a plaintiff has a victory on the way to a final hearing, whether that victory is ultimately one which is fruitful will depend upon whether the plaintiff succeeds in the final hearing. However, if the plaintiff brings an interlocutory application and loses, then that interlocutory hearing is one which will, irretrievably, have cost the defendant money, and the justice of the situation is that the defendant should be indemnified for those costs, regardless of the outcome of the proceedings. (Emphasis added) 26 It is unclear from the decision in Ausino International whether there has been some mutation in the "usual order" over the last decade, or whether in Ausino International Campbell J's comments were reflecting the matters to which Young J adverted in Deveraux Holdings. This in itself may reflect a trend of greater contestability of issues once a dispute engages the court process. However, it seems to me there is force in Young J's analysis of the circumstances which justify the making of one order rather than another on an interlocutory application. It should be noted that Campbell J consistently applied that rule in the Equity Division of the Supreme Court: see Russ Australia v Benny [2006] NSWSC 1118; Glen Eight v Home Building [2005] NSWSC 907; see also the decisions of Hamilton J: Scholten v Mobilesoft Pty Ltd [1999] NSWSC 234; Ingersoll-Rand (Aust) Ltd v Industrial Rollformers Pty Ltd [2000] NSWSC 178."
In our opinion, these statements do not assist the Antonio Family. What is clear is that the CTTT, as recorded in its reasons for decision of 30 September 2013, considered the costs order which it should make and formed the view that there should be a specific and discrete costs order made in favour of the Company at that stage in respect of the determination of the preliminary question. Whilst the CTTT could, if justified in the circumstances, have ordered in September 2013 that the costs of the preliminary hearing should be costs in the cause or the Company's costs in the cause, it did not do so. There does not appear to us to be any foundation in the circumstances for concluding that the 2013 Costs Order, which related to the hearing of the preliminary question, was to be regarded as an order that the costs be costs in the cause.
Subsequently, in the decision of 21 August 2015, the Senior Member deliberately did not interfere with that existing costs order.
In our view, it was open to the Senior Member to take this approach in exercising his discretion. He was not required, in the circumstances of this case, to consider whether the costs order in relation to the preliminary question was to be regarded as an order that they be costs in the cause. Such an order had never been made. Consequently, he did not fall into error by failing to consider that matter.
For these reasons, the appeal so far as it is based on ground 5 should also be dismissed.

Conclusion on the Appeal

The exercise of the Tribunal's costs discretion in making the 2015 Costs Order appears to the Appeal Panel to be entirely unexceptional, particularly where both parties enjoyed a degree of success in the final hearing in relation to the claims which each made against the other and where costs in relation to a discrete preliminary issue had already been determined and confirmed on appeal.
None of the Antonio Family's grounds of appeal should be accepted. In our view, there was no error that would justify, in accordance with the principles in House v The King, the Appeal Panel's interfering with the exercise of the discretion by the Tribunal below in this case.
The Appeal should be dismissed in whole.
Each party indicated that it would seek costs of the appeal. This appeal having been lodged before 1 January 2016, costs in this appeal are governed by s 60 of the Act. The preliminary view of the Appeal Panel is that each party should pay their or its own costs of the appeal, especially having regard to s 60(1) and (2). In case either party is of the view that some different order as to costs of the appeal should be made, the Appeal Panel will include in its decision directions for the filing of submissions.

Orders and Directions

For the above reasons the Appeal Panel orders: 1. The appeal is dismissed.
The Appeal Panel directs: 1. Any party which wishes to seek an order for costs of this appeal in favour of that party is to file and serve a short outline of submissions as to why such an order should be made and as to whether the question of costs should be determined on the papers on or before 19 February 2016. 2. Any party opposing the making of a costs order as sought by another party is to file and serve a short outline of submissions as to why such an order should not be made and as to whether the question of costs should be determined on the papers on or before 4 March 2016. 3. Any submissions in reply are to be filed and served on or before 11 March 2016.

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: 10 February 2016

Consumer, Trader and Tenancy Tribunal Act 2001(NSW)

Consumer, Trader and Tenancy Tribunal Regulation 2009(NSW)

Powers) Act 2010(NSW)

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Cited By (6)