In this matter the Appeal Panel delivered its decision on 29 March 2017 cited as [2017] NSWCATAP 71. The appeal was allowed. The decisions of the Tribunal were set aside and the matters were remitted to the Commercial and Consumer Division of the Tribunal for reconsideration according to law. The parties were ordered to confer as to the costs of the appeal. The appeal panel further ordered that in the event of no agreement as to costs orders on the appeal, submissions as to costs (which are not to exceed 5 pages) may be filed and served within a further 14 days.
On 27 April 2017 the solicitors for the appellants wrote advising that the parties "have been unable to meet (sic) an agreement on costs" and forwarded submissions on costs. Unfortunately, those submissions were filed by the solicitors for the appellants in the Commercial and Consumer Division of the Tribunal rather than with the Appeal Panel. They did not find their way to the Appeal Panel until 6 June 2017. No submission has been filed by the respondent.
[2]
The applicable principles
Section 60 of the Civil and Administrative Tribunal Act provides:
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 that 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.
(4) If costs are to be awarded by the Tribunal, 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 the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.
(5) In this section:
costs includes:
(a) the costs of, or incidental to, proceedings in the Tribunal, and
(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to Civil and Administrative Tribunal Rules 2014 the application or appeal.
Rules 38 and 38A of the (the Rules) provide:
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:
(a) the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under clause 10 (2) of Schedule 4 to the Act in relation to the proceedings, or
(b) the amount claimed or in dispute in the proceedings is more than $30,000.
38A Costs in internal appeals
(1) This rule applies to an internal appeal lodged on or after 1 January 2016 if the provisions that applied to the determination of costs in the proceedings of the Tribunal at first instance (the first instance costs provisions) differed from those set out in section 60 of the Act because of the operation of:
(a) enabling legislation, or
(b) the Division Schedule for the Division of the Tribunal concerned, or
(c) the procedural rules.
(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.
The proceedings at first instance were brought in the Consumer and Commercial Division of the Tribunal and involved a claim for more than $30,000.
The appeal was filed on 13 May 2016. Because rule 38 applied at first instance and the appeal was filed after 1 January 2016, rule 38A applied to the appeal so as to apply rule 38 to questions of costs of the appeal. Rules 38 and 38A remove the need for special circumstances before an order for costs may be made in respect of an appeal where the amount in issue on the appeal exceeds $30,000. The amount in issue on the appeal is the amount by which the appeal might affect the position of the parties. In Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 an Appeal Panel held, at [57]:
… having regard to the specific wording of r 38, it appears to us that in applying r38(2)(b):
(1). The determinative factor is the amount in dispute in each appeal, not the amount in dispute in the proceedings at first instance;
(2). The phrase "in dispute" is to be construed as meaning truly in dispute or at issue or, inversely, not unrealistically in dispute;
(3). Whether "the amount … in dispute" in each appeal is more than $30,000 depends on whether there is a realistic prospect that in each appeal the wealth of the appealing party would be changed by more than $30,000 or, put another way, whether the right claimed by the appealing party, but denied by the decision at first instance, prejudices that party to an amount in excess of $30,000;
(4). The fact that the value of the property the subject of any appeal exceeds $30,000 does not, of itself, mean that "the amount … in dispute" in that appeal is greater than $30,000.
There is no question that on this appeal the amount in issue was in excess of $30,000. Thus rules 38 and 38A combined have the effect that special circumstances are not necessary before the Appeal Panel may make an award in respect of the costs of the appeal. As the Appeal Panel in TAG Aviation Pty Ltd v Kirk [2017] NSWCATAP 41 at [41], the panel has a "general discretion on the award of costs".
In their submissions, the appellants have drawn our attention to the observations of Malpass AsJ in IPM Pty Ltd v Consumer Trader & Tenancy Tribunal [2008] NSWSC 130 in which he referred to the discretion with respect to costs was broad but was to be exercised "judicially" and having regard to the "relevant circumstances of the particular case". We respectfully adopt those statements of principle.
[3]
Costs of the Appeal
The appellants submit that they were wholly successful in their appeal and that the panel should follow the general rule that costs follow the event. They submit that there is nothing to justify denying them their costs.
On the other hand, they submit, the respondent engaged in conduct that caused unnecessary costs and delay. They refer to what they would describe as unco-operative conduct in relation to the obtaining of a transcript of the hearing at first instance and the placement of caveats over the appellant's property. We have had regard to the affidavit of Mr O'Mara and its annexures which relate to the appellants' submissions above.
An order for costs is not a penalty imposed on a party. We do not consider that the conduct of the respondent referred to in the appellants' submissions or the affidavit of Mr O'Mara constitute a basis for ordering costs against the respondent.
However, the appellants' principal submission remains that costs should ordinarily follow the event.
There are circumstances in which other costs orders will be appropriate.
For example, in Markinsky v Zammit [2016] NSWCATAP 253 at [29] an Appeal Panel of the Tribunal held that:
In proceedings in which multiple issues are contested…the conventional approach is that costs will follow the event, that is, in accordance with the outcome of the proceedings as a whole without an attempt being made to differentiate between particular issues on which the successful party overall may not have succeeded: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38]; James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [32]. But a court or tribunal may make a different order, particularly if the successful party overall raises an issue unreasonably or otherwise acts in such a manner that would make it unfair for them to receive all their costs: Rozniak v Government Insurance Office (1997) 41 NSWLR 608. More usually, however, a court or tribunal will only deprive a party successful overall of costs in relation to a particular issue when that issue was a dominant issue or clearly separable: Monie v Commonwealth (No 2) [2008] NSWCA 15 at [64], [65].
In the present case, we do consider that there are circumstances which make it unfair for the appellants to receive all of their costs. The appeal was first listed for hearing on 13 May 2016. It was not ready. It was not apparent from the appellants' documents or submissions which grounds the appellants asserted gave rise to errors of law where they had a right to appeal and those grounds for which leave was required. The hearing date was abandoned and directions made for the matter to be made ready for hearing. We do not consider that it would be fair for the appellants to have their costs of 13 May 2016 and for that date our order will be that each party should bear its own costs.
Otherwise, we consider that costs should follow the event and our order will be that the respondent should pay the appellants' costs of the appeal.
[4]
Orders
1. Each party is to pay its own costs of 13 May 2016.
2. Otherwise, the respondent is to pay the appellants' costs of the appeal.
[5]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Principal Registrar
[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: 05 September 2017