Javam v Al-Amin

Introduction

The substantive appeal to which this application relates stems from proceedings between the appellant as builder and the respondents as home owners in the Consumer and Commercial Division of the Tribunal, for remedies under the Home Building Act 1989 (NSW).
On 13 January 2020, the Tribunal in the proceedings at first instance awarded the respondents the sum of $446,513.65, following a two-day hearing. The appellant subsequently lodged an internal appeal and an application to stay the order requiring payment of that amount, pending the resolution of the appeal.
I dealt with that stay application on 3 March 2020 and dismissed the application. The respondents sought their costs of the application for a stay and I made directions for submissions on the issue and, with the consent of the parties, ordered that a hearing of that application be dispensed with.
The substantive appeal was subsequently heard on 30 April 2020 and the decision in the substantive appeal was published on 17 June 2020: Javam v Al-Amin [2020] NSWCATAP 113.
The Appeal Panel made the following order for costs in the substantive appeal, by order 2: The Appellant is to pay to the Respondent the Respondents' costs of the appeal in an amount as agreed or as assessed.
Arguably, that order encompasses the respondents' costs of the application for a stay.
However, given that no specific decision has been made in respect of the discrete application for costs of the application for a stay by the respondents, it is preferable that I deal with it now, to avoid unnecessary further litigation between the parties and to bring the proceedings to a conclusion.
I gave oral reasons for dismissing the appellant's application for a stay.
In summary, though, the appellant failed to satisfy me that a stay was appropriate, primarily for the following reasons: 1. Firstly, the appellant failed to demonstrate that there was any real risk that he would suffer prejudice if the stay was not granted pending the appeal. The evidence of the appellant, who was legally represented in the stay application, failed to properly engage in demonstrating that he was unable to meet the payment of the judgment amount pending determination of the appeal or that doing so would place him in such financial jeopardy that the appeal may be rendered nugatory because of his inability to prosecute it; and 2. Secondly, the appellant failed to demonstrate that the respondents would be unable to repay the amount of the judgment debt in the event that the appellant was successful in the appeal and the amount was ordered to be repaid.

Principles relating to costs

The primary provision governing costs in relation to proceedings in the Tribunal is s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the Act"). Pursuant to that section, each party to proceedings is generally to pay their own costs. However, pursuant to s 60(2) of the Act, the Tribunal may award costs if it is satisfied that there are special circumstances warranting it doing so.
The factors which may be considered by the Tribunal when determining whether special circumstances have been demonstrated are set out in ss 60(3)(a) to (f) of the Act and in subsection 60(3)(g) of the Act, which allows the Tribunal to take into account: [A]ny other matter the Tribunal considers relevant.
In relation to proceedings in the Consumer and Commercial Division where the amount in dispute is over $30,000, that general rule is modified by r 38(2)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) ("the Rules) and the Tribunal in those proceedings may award costs even in the absence of special circumstances.
Clearly, the terms of r 38(2)(b) were engaged in the proceedings which were the subject of the appeal.
In an appeal from a decision where r 38 applies, r 38A of the Rules requires the Appeal Panel to apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal.
In respect of this application, the respondents submit that the proper application of r 38A means that the costs provisions in r 38(2)(b) apply to the application for a stay.
They acknowledge that the application for a stay could be said to not strictly relate to an amount claimed or in dispute over $30,000.00, but might properly be construed as a requiring determination of whether the judgment amount should be paid pending determination of the appeal, citing Singh v Fobupo Pty Ltd [2019] NSWCATAP 34 (Singh).
They submit, though, that r 38A does not expressly differentiate between interlocutory costs and the costs of the internal appeal as a whole.
I see merit in the respondents' argument in respect of these issues, particularly given that Singh related to an appeal from an interlocutory decision of the Tribunal below where it was not apparent that r 38 was engaged.
Prima facie, r 38A is engaged in respect to the costs of all aspects of this appeal because the "provisions that applied to the determination of costs in the proceedings of the Tribunal at first instance …differed from those set out in section 60 of the Act…": the Rules, r 38A(1).
However, I am not satisfied that it is necessary or appropriate for me to determine that in respect of this application because: 1. the appellant made no submissions in relation to the issue; and 2. I am satisfied, in any event, that this is a matter where special circumstances have been demonstrated warranting an order that the respondents have their costs of the stay application.
It is well-settled that special circumstances do not require circumstances which are exceptional or extraordinary: CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21. Rather, the question is whether the circumstances are out of the ordinary.
My satisfaction that there are special circumstances in respect of this application is based on: 1. the fact that the application for a stay was prosecuted by the appellant, with the benefit of having been given leave for legal representation, without proper regard to providing any evidence which was likely to satisfy the Appeal Panel that the interest of justice warranted a stay; 2. the relative strengths of the claims made by each of the parties in respect of the stay, on that basis: the Act, s 60(3)(c); and 3. the situation that, having regard to the costs order made in the substantive appeal, if the respondents had not separately made an application for costs of the application for a stay they would have been entitled to their costs of the application by virtue of that order in any event.
On being satisfied that special circumstances exist, I need to exercise my discretion in relation to whether an order should be made in favour of the respondents.
I am satisfied that it should.
The respondents have been successful in the substantive appeal, including in relation to costs. They were also successful in resisting the application for a stay.
The usual order for costs is that they follow the event, to compensate a successful party for the cost of the litigation: Thompson v Chapman [2016] NSWCATAP 6 at [69]; Oshlack v Richmond River Council (1998) 193 CLR 72 at 97. I see nothing to warrant the exercise of my discretion differently here.
I will order that the appellant pay the respondents' costs of the application for stay as agreed or assessed.
Of course, the intent of this order is that there be no duplication in the assessment of the respondents' costs by virtue of this order and the order of the Appeal Panel in relation to the substantive appeal.

At a glance

Court

Decision date

Source

Judgment (4 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (5)