Beattie v Wesley Mission

NCAT Appeal Panel|2017-05-25

Introduction

Ms Beattie (the appellant), a resident of a retirement village, instituted proceedings in the Tribunal against the owner of such village, namely the Wesley Mission (the respondent) claiming relief and consequential orders under the Retirement Villages Act 1999 NSW ("the RV Act"). In those proceedings Ms Beattie alleged, inter alia, that certain payments and disbursements by the respondent were unauthorised. On 22nd of June 2016 the Tribunal dismissed Ms Beattie's application.
By order of the Tribunal made on 10 February 2017, the Tribunal made the following order: "1. The applicant is to pay the legal costs of the respondent of and incidental to the proceedings on the ordinary basis as agreed or assessed".
By notice of appeal filed on 18 July 2016, the appellant challenged the decision of the Tribunal. However the Appeal Panel dismissed the appellant's appeal: see Beattie v Wesley Mission NSWCATAP12.
In the Notice of Appeal, no application was made for an order for costs, and the Appeal Panel did not reserve the question of costs. However, the respondent, in its Reply to Appeal, and in particular, in its Reply to Leave to Appeal specifically raised the issue of costs, asserting that it was unclear whether the Appellant had the means to meet any order for costs.
The appeal was heard with neither party making any oral application for costs nor were any written submissions provided on this issue.

Statutory provisions

Pursuant to s60 of the Civil and Administrative Tribunal Act 2013 (NSW), ("NCAT Act"), the Tribunal is empowered to award costs, as follows: "60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim t civil hat has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant".
Rule 38 (2) of the Civil and Administrative Tribunal Regulation 2013 provides that, in the Consumer and Commercial Division of the Tribunal, despite s 60 of the NCAT Act, where the dispute involves more than $30,000, the Tribunal may award costs even in the absence of special circumstances warranting such an award.
In respect of appeals filed after 1 January 2016, rule 38A applies which relevantly provides: "38A Costs in internal appeals (1)… (2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal".

Basis for an award of costs

It has been established repeatedly that an award of costs to a party is to compensate it where that party has been put to expense in appears during or defending a claim: see Oshlack v Richmond River Council (1998) 193 CLR 72. An award of costs is made, not for the benefit of a losing party, but for the successful party. At 97, McHugh J (in dissent but with the tacit agreement on this issue with other members of the Court) said: "The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended by, the unsuccessful party the successful party would not have incurred the expenses which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation".
His Honour continued at page 568: "Even when the discretion [to award costs] is uncontrolled, civil courts act on the basis that a successful party has a reasonable expectation of obtaining an order for costs and that the discretion to refuse to award costs should not be exercised against a successful party except for reasons connected with the case."
His Honour's observations have been adopted repeatedly in this Tribunal: see Lam v Steve Javin Motors Pty Ltd [2016] NSWCATAP 186; 203 Castlereagh Street Pty Ltd v Skybloo Holdings Pty Limited [2017] NSWCATAP 29 Similar observations to the same effect have been made in other authorities: see for example the to this Latoudis v Casey (1990) 170 CLR 534 at 543, 562 - 563; Thompson v Chapman [2016] NSWCATAP 6 at [69];
The appellant was unsuccessful in her appeal. On the basis of established authority, there is no ground upon which the appellant has any entitlement costs.

Litigant in person

Even if the appellant had been successful, the application for costs could not have succeeded, save in respect for out-of-pocket expenses, since the appellant did not retain any legal representation and conducted the proceedings entirely on her own. The High Court of Australia held in Cachia v Hanes (1994) 179 CLR 403 that costs are awarded by way of indemnity or partial indemnity for professional legal costs actually incurred in the conduct of the litigation. At 410 - 411 the High Court stated: "It has not been doubted since 1278, when the Statute of Gloucester ((4) 6 Edw.1 c. 1.) Introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. They were never intended to be comprehensive compensation for any loss suffered by litigant. As Coke observed of the statute of Gloucester, the costs which might be awarded to a litigant extended to the legal costs of the suit, "but not to the costs and expences of his travelle and the loss of time"." [Footnotes omitted].
Accordingly, had the appellant been successful, no costs could have been awarded other than out-of-pocket expenses. No payment can be made for her time and expense incurred in pursuing the appeal.

Absence of order sought in the appeal

The appellant did not seek an order for costs in her Notice of Appeal. Such a matter is not one which necessarily disqualifies an application for costs: see Edwards v Cohen Handler Pty Ltd [2017] NSWCATAP 53. In that decision, the Appeal Panel at [23] referred to the fact that a costs decision is an "ancillary" decision of the Tribunal for the purposes of s. 4 of the NCAT Act and that an appeal may be made against an ancillary decision on "any question of law". Further, the Tribunal concluded in that matter, at [27], that whilst the parties had not addressed costs specifically, costs were a live issue and accordingly the rule relating to finality of proceedings did not prevent the Tribunal considering such issue even after a notice of order had been made.
In these proceedings it could be concluded that whilst the appellant's Notice of Appeal did not address costs, such omission probably resulted from the fact that the costs decision was delivered only on 10th of February 2017, namely 8 months after the filing of the Notice of Appeal. Had the appeal been successful, the order for costs of the hearing before the Tribunal would almost certainly have been set aside. Accordingly, the Appeal Panel does not regard the failure to refer to the issue of costs as being a matter which disqualifies the issue of costs being raised by the appellant in this costs application. However for the reasons already referred to, namely the fact that the appellant was the unsuccessful party, no award can be made in her favour of the cost of this appeal, and the cost order made on 10 February 2017 remains as a valid order.
As to the costs of the successful respondent, the Appeal Panel notes that the subject matter of the proceedings exceeded $30,000; that the Appeal, being lodged after 1 January 2016, is to be considered in respect of costs in the light of the provisions of s 38A of the Regulation. Accordingly the Appeal Panel must consider whether any of the provisions of s 60 of the NCAT Act apply such as to justify an award of costs.
The appellant, in her challenge to the Tribunal's decision, raised many issues of law and of the interpretation of the RV Act. The appellant's claims were arguable. The Appeal Panel finds that there is nothing in any of the provisions of s 60 (3) of the NCAT Act which would constitute "special circumstances warranting an award of costs". In these circumstances the Appeal Panel concludes that there should be no order for costs made in respect of this appeal. The Appeal Panel will make an order accordingly.

Orders

The Appeal Panel orders that : 1. the appellant's application for costs application for costs be dismissed, and that the respondent's application for costs be dismissed; 2. no order for costs to be made of the Appeal. 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: 25 May 2017

At a glance

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Judgment (7 paragraphs)

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