On 17 October 2022 we summarised our decision and orders of that date in the proceedings leading to this application (Coolah Home Base Pty Ltd v Tait [2022] NSWCATAP 324) (substantive appeal decision) as follows:
[1] We have decided, for the reasons given below, that the appeal should be dismissed, except for a variation of wording in primary order 1 made 5 July 2021 which does not change its substance and a variation in primary order 2 made 5 July 2021 to remove from the ambit of its operation all of the appellants presently included, except for Coolah Tourist Park Pty Ltd.
[2] The effect of the decision is success for the appeal respondents in upholding the application of the Retirement Villages Act 1999 (NSW) (RV Act) to their shares in the first appellant Coolah Home Base Pty Ltd (CHB) and the occupation and other rights attached to those shares, and success for the present appellants in removing from the ambit of performing operator obligations the two directors Mr Graeme Booker and Ms Janet Kelly and the companies CHB and Home Base Solutions Pty Ltd (HBS), leaving Coolah Tourist Park Pty Ltd (CTP) as the present operator subject to the obligations.
We made provision in the orders for submissions as to costs of the appeal and costs of the primary hearing, including as to whether a hearing is sought on costs. We said:
[3] … Those submissions should take into account the nature of the relief claimed and in dispute (in the primary hearing and on appeal) in conjunction with the wording of s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), rules 38 and 38A in the Civil and Administrative Tribunal Rules 2014 (NSW) and the analysis in Owners SP 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256 esp at [2]-[5], [75]-[111].
The present appeal respondents, as we called them in the substantive appeal decision, applied for their costs of the appeal and the primary hearing. The appellants resisted that application on various grounds. Neither party sought a further hearing on costs. Since we are satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions, we shall make an order dispensing with such a hearing.
In case this matter goes further, we should say at the outset that, if the ordinary costs rules were held to apply, we would have exercised our discretion to award the present appeal respondents the costs of the appeal and the primary hearing. We respectfully disagree with the submission of the appellants that each party enjoyed a measure of success and that accordingly each party should pay their own costs. Overall, the present appeal respondents succeeded on appeal in defending their claim to be governed by the Retirement Villages Act 1999 (NSW) (the RV Act). There was a minor variation to the language but not the substance of primary order 1. There was a change to the person liable to perform the obligations under the RV Act under revised order 2. The range of persons potentially subject to those obligations had common representation at primary and appellate level. There was no material to support any finding as to a substantive increase in costs from there being several represented persons. Overall, on the normal principles governing exercise of the costs discretion, we do not see any basis to depart from the usual position that the party gaining overall success is entitled to their costs.
However, we do not reach the exercise of that discretion. We respectfully disagree with the present appeal respondents and agree with the appellants that r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (Rules) does not apply. As a consequence, the present respondents would need to establish special circumstances within the meaning of s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) to obtain a costs order in their favour. The present appeal respondents' costs submissions do not embark on that task.
Accordingly, the order for costs of the appeal should be as propounded by the appellants, and consistent with the costs order for the primary decision made by the primary member, that there be no order as to the costs of the appeal, just as there was no order as to the costs of the primary hearing.
We reach that conclusion for substantively the same reasons as the primary member, which we set out briefly below.
The present appeal respondents submitted that costs questions were governed by r 38 of the Rules, which relevantly provides as follows:
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 -
…, or
(b) the amount claimed or in dispute in the proceedings is more than $30,000.
In Owners SP 63341 v Malachite Holdings PL [2018] NSWCATAP 256 at [3]-[5] the Appeal Panel summarised the operation of r 38 as follows:
[3] Rule 38(2)(b) applies to the following proceedings:
(1) Where the relief claimed in the proceedings is for an order to pay a specific amount of money, or an order to be relieved from an obligation to pay a specific amount of money, and that amount is more than $30,000;
(2) Where an order is sought in the proceedings for the performance of an obligation (such as to do work), and the Tribunal has power make an order to pay a specific amount of money, even if not asked for by the claimant, provided that
(a) there is credible evidence relating to the amount the Tribunal could award; and
(b) that evidence, if accepted, would establish an entitlement to an order for an amount more than $30,000.
[4] Rule 38(2)(b) may also apply to proceedings where the orders sought in the proceedings depend upon the claimant proving there is a debt owed in order to establish an entitlement to the relief sought, and that amount is in dispute and is more than $30,000.
[5] Rule 38(2)(b) does not apply to proceedings:
(1) Where a claim for relief in the proceedings (not being a claim for an order to be paid or be relieved from paying a specific sum) may, as a consequence of that relief being granted, result in the loss of any property or other civil right to a value of more than $30,000; or
(2) Where there is a matter at issue amounting to or of a value of more than $30,000 but:
(a) no direct relief is sought and no order could be made in the proceedings requiring payment or relief from payment of an amount more than $30,000; or
(b) the relief sought does not depend on there being a finding that a specific amount of money is owed.
In Hanave PL v Wine Nomad PL [2022] NSWCATAP 361 at [40]-[42] the Appeal Panel expounded aspects of the above summary:
[40] As made clear in Malachite at [75] and following, r 38 is not concerned with the value of rights that might be in issue or any change in wealth. Unlike s 101(2)(r) of the Supreme Court Act 1970 (NSW), r 38 does not require consideration of whether the proceedings:
(1) involve a matter at issue amounting to or of a value of $30,000 or more, or
(2) involve (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $30,000 or more.
[41] Rather, r 38(2)(b) applies where "the amount claimed or in dispute in the proceedings is more than $30,000".
[42] The questions to be determined are what is the amount "claimed", what is the amount "in dispute" and what are "the proceedings" in circumstances where there are two applications, the second in the nature of a cross-application ("cross application").
The Appeal Panel then analysed at [43]-[63] the three questions in the context of competing claims by the parties in which some matters in one claim needed to be assessed as to whether they constituted an equitable set-off or were otherwise required for a determination of the other claim. That complexity does not arise in the present proceedings.
In Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [37]-[38], the Appeal Panel found that "'[P]roceedings'" refers to the process set in motion, or commenced, by lodging an application or notice of appeal. That process includes the steps taken by the Tribunal to hear and determine whether to grant the relief sought in the application or notice of appeal, as well as any interlocutory or ancillary steps. Proceedings are defined by the subject matter raised in the application or notice of appeal. The participants in proceedings are limited to the parties determined in accordance with [NCAT Act s 44 and the Rules]".
The present appeal respondents' submission focused entirely on the value of rights in issue or change in wealth and the authorities expounding those concepts in the context of a differently-worded statutory provision. That is directly inconsistent with the law on the application of r 38 as expounded in Malachite.
In this respect, as we noted in our substantive decision at [181]:
There was no basis expressed in the primary decision for an order concerning retraction or compensation and no order for a process concerning quantification of compensation. No cross-appeal in respect of these issues was brought, despite there having been a proposal in the present appeal respondents' final points of claim for separate determination of quantum of any compensation or directions concerning preparation for this aspect of the claim.
As noted in Hanave at [78]-[79], r 38A of the Rules would have required us to apply r 38 if it had applied at first instance. But the primary member correctly found, for reasons consistent with the foregoing, that r 38 did not apply.
Accordingly, the present appeal respondents' application for costs of the appeal and primary proceedings must be dismissed.
[2]
Orders
We make the following orders:
1. Dispense with a hearing on costs.
2. The respondents' application for costs of the appeal and the primary proceedings is dismissed.
3. Make no order as to the costs of the appeal, to the effect that each party bears their costs of the appeal.
[3]
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: 09 January 2023