Jayasooriah v Wisdom Properties Group Pty Ltd

NCAT Appeal Panel|2020-06-23

REASONS FOR DECISION

In Jayasooriah v Wisdom Properties Group Pty Ltd [2020] NSWCATAP 81 at [56] -[60] we stated that: 'We have found that the appellant is the successful party in these proceedings. We further find that no disentitling conduct may be attributed to him and in accordance with usual principles, he is entitled to his costs of the appeal. We will make an order that the respondent must pay the appellant's costs of the Appeal on a party/party basis, such costs if not agreed to be assessed on the basis set out in Division 3 of Part 7 of the Legal Profession Uniform Law Application Act 2014. If a different costs order is sought, the party seeking such different order must file and serve written submissions in favour of the order sought within 14 days. The other party must then file and serve submissions in response with a further period of 14 days. The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing.'
Both parties have made submissions in accordance with the orders we made consequent on what was stated as cited above, and have agreed to the costs application being determined on the basis of their written submissions without the need for a hearing.
The respondent submits that the costs of the appeal should abide the outcome of the remitted hearing. Reliance is placed on Baserite Constructions Pty Ltd v Tanios [2020] NSWCATAP 77 in support of this submission. A submission is also made that we should not exercise our discretion to make a costs order adverse to the respondent when the appeal was necessary through no fault attributable to it.
The appellant submits that the appellant should pay his costs of $2,363.40 and that costs should be ordered against the respondent when almost the entirety of the appeal hearing was concerned with the first instance decision regarding the rectification orders, or the 'Primary claims' as described by the respondent, which the respondent sought to uphold. In addition, the appellant points to the fact that the respondent opposed his application for an extension of time. Finally, the appellant submits that the decision in Baserite Constructions Pty Ltd v Tanios is not analogous to the facts in this appeal, and is substantially different in many respects.

The Appeal Panel's power to award costs

This issue has been dealt with in numerous decisions of the Appeal Panel, most recently in Goncalves v Bora Developments Pty Ltd; Bora Developments Pty Ltd v Goncalves (No 2) [2020] NSWCATAP 112 where an Appeal Panel stated at [16] - [19] 'The general rule in the Tribunal is that costs of an appeal are only allowed where special circumstances are found - see s 60 of the NCAT Act. Section 60, however, is in Pt 4 of the NCAT Act. Section 35, which is also in Pt 4, provides: 'Each of the provisions of this Part is subject to enabling legislation and the procedural rules.' Therefore, s 60 is subject to the procedural rules. Rule 38A of the Civil and Administrative Tribunal Rules 2013 (NSW) (the NCAT Rules) provides with respect to internal appeals that: (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. Rule 38 is a first instance cost provision which applies to claims in the Consumer and Commercial Division where, among other things, the amount in dispute exceed $30,000. Rule 38 says - (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.'
We accept the above extract as correct and adopt it.
The amount in dispute with respect to this appeal is $47,104.00 in relation to the claims referred to at [41] of Jayasooriah v Wisdom Properties Group Pty Ltd. This was also the case with respect to the appellant's initial claim before the Tribunal in the first instance proceedings.
The usual rule which therefore applies is that costs follow the event.

The amount of costs claimed

The appellant claims his costs by reference to the Commercial and Consumer Division Guideline dated August 2017, clauses 9c) and 10. Those clauses state: '9. A party can ask for the following costs: c) the disbursements' of a self-represented party or non-professional agent - such as Tribunal filing fees, witness expenses and photocopying charges. 10. A party cannot ask for any of the following costs: a) Their own travelling costs b) Their own time spent in preparing or running the case, or lost earnings of a self-represented party or non-professional agent.'
We accept that the above paragraphs of the Guideline should apply so far as applicable to Appeal Panel proceedings.
The appellant states that he is a person with a disability and as such has had to engage Ms De Oliveira to assist him in his appeal by providing secretarial services. He has filed with his submissions tax invoices 188 - 1 and 2 issued by Ms De Oliveira to him for the services she provided for which she invoiced a total of $2,363.40.
The appellant claims $2,363.40 as his costs of the appeal on the following basis: 1. $968.40 being out of pocket expenses for copying, postage and filing fees; and 2. $1,395.00 for printing and posting and secretarial services.
We are not persuaded by the respondent's submissions that we should not make a costs order in this appeal. We find that it was necessary for the appellant to institute these proceedings at least in connection with the 'Additional Claims', which we note were conceded by the respondent on 2 April 2020.
So far as the 'Primary Claim' is concerned, both parties contested that claim at the appeal hearing, with the respondent strenuously submitting that an extension of time should not be granted to the appellant for the relatively minor period of time by which the Notice of Appeal was late. This was despite the fact that the respondent conceded that the Additional Claims had not been determined by the Tribunal at first instance, which would ordinarily amount to a concession that there was an error of law.
We can see no basis for making an order that the costs of the appeal should abide the outcome of the remitted hearing. To do so in the relatively straightforward circumstances of this appeal would not be in compliance with s36(1) of the Civil and Administrative Tribunal Act 2013 which states that the guiding principle of the Act and the procedural rules is to: 'facilitate the just, quick and cheap resolution of the real issues in the proceedings'
We therefore have come to the conclusion that, as stated, the appellant was the successful party and should have an order that the respondent pay his costs on the ordinary basis.
We accept that his claim for his costs as described above relates to his actual expenses of conducting this Appeal and complies with clause 9c) and does not contravene clause 10 of the Commercial and Consumer Division Guideline regarding costs.
We will make an order that the respondent must pay the appellant the sum of $2,363.40 immediately being his costs of the appeal.

Orders 1. By consent a hearing on costs is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013. 2. Wisdom Properties Group Pty Ltd must pay Jayasooriah $2,363.40 immediately, such sum being his costs 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: 23 June 2020

Civil and Administrative Tribunal Rules 2013(NSW)

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