This is an appeal from a decision of the Tribunal given on 19 June 2017 in which the present appellant, Mr Azzi, was the respondent. In those proceedings the applicant, Mr Phan, the respondent to the present appeal, succeeded in obtaining an order that the appellant pay the respondent the sum of $104,708.
[2]
Background
On 7 July 2017, the appellant (Mr Azzi) filed a notice of appeal.
On 25 July 2017, directions were made including that the appellant file and serve any documents upon which he relied, any submissions and any recording of the proceedings in the Tribunal below by 15 August 2017. The respondent was to reply in kind by 29 August 2017, and the appeal was listed for hearing on 8 September 2017.
On 9 August 2017, the Tribunal confirmed that the hearing of the appeal was listed for 8 September 2017.
On 25 August 2017, directions were made that there would be a directions hearing on 29 August 2017.
On 29 August 2017 there was, according to the Tribunal's file, an application to vacate the appeal. That application was dismissed and some orders were made for the preparation of the appeal.
On that same day, the Tribunal noted that the appellant had failed to appear at the directions hearing, had failed to provide any evidence concerning why he had not complied with order 4 made on 25 July requiring him to file evidence, submissions and a sound recording by 15 August 2017, and had failed to explain why a sound recording/transcript of the first hearing was not sought to be obtained immediately after the directions hearing on 25 July 2017.
A further direction was then made that any further application to extend time to file and serve evidence and submissions must be supported by an affidavit or statutory declaration setting out the steps taken by the appellant to comply with the orders of the Tribunal, and when those steps were taken. The appellant was ordered to pay the respondent's costs of the directions hearing in the sum of $350.
By email dated 31 August 2017, the appellant advised the Tribunal and the respondent that he wished to withdraw the appeal.
By a letter dated 4 September 2017, the solicitors for the respondent advised the Tribunal and the appellant that the respondent did not object to the withdrawal of the appeal, but sought its costs of an incidental to the abandoned appeal. The respondent said that he would consent to an order for dismissal of the appeal on the basis the appellant consented to an order for costs. The respondent said that if the appellant opposed the payment of costs, certain directions ought to be made for the filing and service of submissions regarding costs.
By email to the parties dated 5 September 2017, the Tribunal advised the parties that the Appeal Panel directed that:
"The appeal remains listed at 2.15pm on Friday 8 September 2017. The parties should appear on that date and at that time, and be prepared to argue the appeal, or any application in relation to the appeal, including any application as to costs."
Subsequently an email dated 5 September 2017 was received from the appellant. In that email, the appellant noted the letter from the respondent's solicitors that we have referred to earlier, and expressed his desire to withdraw his appeal immediately. He noted that he did not want any order as to costs. The email further said that if the Tribunal was against him, to please make orders about submissions relating to costs. That part of the email is to be read as the appellant seeking directions for the filing and service of submissions as to costs.
On 7 September 2017, the Tribunal emailed the parties confirming the further directions by the Appeal Panel. Those further directions referred to Mr Azzi's email of 5 September 2017, and said:
"Any applications, including any application to withdraw the appeal and any application for costs, are to be made in person at 2.15pm on Friday 8 September 2017 in the place allocated for the hearing of the appeal."
Today, Mr Azzi appears in person and Mr M Wells, of counsel, appears on behalf of the respondent.
[3]
Application
Mr Azzi confirms that he wishes to withdraw his appeal, as he is entitled to do. The respondents seek costs, which Mr Azzi opposes.
On the question of costs, Mr Azzi submitted that he did have a good case on appeal, that he had requested a transcript of the proceedings below as advised by a barrister formerly retained by him. Mr Azzi says that that barrister advised him against proceeding with the appeal. Mr Azzi says that soon after receiving that advice he notified everyone that he did not wish to proceed with the appeal. Mr Azzi says that he has also incurred various costs in proceeding with the appeal.
In response, Mr Wells submits that the respondent seeks costs on two bases. The first basis is that there is no reason to depart from the usual rule as to costs. The second is that the appeal was misconceived. For the Tribunal's assistance, Mr Wells provided the Appeal Panel with a copy of Channell v Graham [2017] NSWCATAP 129 in which an appeal panel, differently constituted, determined the question of costs on a withdrawn appeal. Mr Wells says the facts set out in that case are relevantly similar to this case. Mr Wells draws attention to particular parts of that decision and the reasoning in that decision.
In response, Mr Azzi, in effect, seeks an adjournment so that he can obtain legal advice on the decision of Channell v Graham. Mr Azzi says he came today thinking that he would be able to be given some time in order to obtain advice as to costs and to put before the Tribunal any submissions as to costs.
Mr Azzi's last mentioned approach is incorrect. The emails earlier referred to make clear to both parties that the Tribunal would determine the question of costs today absent some good reason. No good reason has been demonstrated. Therefore, we propose to determine the question of costs.
We should say that we do not think there is any particular prejudice to Mr Azzi in not obtaining a further adjournment. The only basis for it is that he has been given a copy of the decision of Channell v Graham. That decision, without any disrespect to the Appeal Panel which heard that case, set out the traditional considerations to be taken into account on a question of costs and, as has been pointed out to Mr Azzi, each case is to be determined on its own facts.
[4]
Consideration
As Mr Wells correctly points out, the usual rule in proceedings is that the party withdrawing an appeal in circumstances similar to the ones before us today ought to pay the costs. It is not an absolute rule but it embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour.
The fact that the appellant has withdrawn the appeal is, in substance, a successful outcome for the respondent.
These proceedings were commenced in the Consumer and Commercial Division of the Tribunal, having been brought under the Home Building Act 1989 (NSW). Accordingly, s 60 of the Civil and Administrative Tribunal Act 2013 No 2 (NSW) and r 38A of the Civil and Administrative Tribunal Rules 2014 apply.
The outcome of those particular provisions is that where an amount claimed, or in dispute, in the proceedings is more than $30,000, as it is in the present case, then no special circumstances are required warranting an award of costs.
In our opinion Mr Azzi should pay the respondent's costs of the appeal as agreed or assessed. It is Mr Azzi who commenced the appeal. Whether or not he considered it was a good case is not to the point. The fact remains that he commenced the appeal thereby causing the respondents to incur costs. Orders for costs are not by way of punishment, but are by way of indemnity for costs incurred by a successful party.
In our view, it is appropriate in these proceedings for the party who incurred costs, which were incurred as a result of the actions of the other party in the litigation, to be reimbursed, not as any punishment against Mr Azzi but as some compensation for the costs the respondent incurred in defending themselves from the appeal brought by Mr Azzi.
No disentitling conduct has been identified by Mr Azzi, nor is any apparent from the material which we have seen. That is, no disentitling conduct of the respondent is apparent to us and which would disentitle him to an order for costs.
[5]
Decision
In our opinion, the proper exercise of the discretion as to costs, in order to do justice between the parties in circumstances where Mr Azzi commenced an appeal causing the respondent to incur costs, and then for Mr Azzi to withdraw the appeal, justifies an order that the appellant pay the respondent's costs.
The orders we make are:
1. The appeal is dismissed pursuant to s 55 of the Civil and Administrative Tribunal Act 2013 No 2 (NSW).
2. The appellant is to pay the respondent's costs of, and incidental to the appeal, as agreed or assessed.
3. The stay (or partial stay) made by the Tribunal on or about 19 June 2017 is dissolved forthwith.
[6]
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: 20 November 2017