Maiolo v Chiarelli

NCAT Appeal Panel|2016-09-26

Reasons for Decision

In these proceedings the Appeal Panel's decision was handed down on 11 April 2016. A minor amendment was made on 19 April 2016.
The decision was as follows: 'The appeal from the Tribunal's orders dated 12 October 2015 in HB 15/47133 is allowed and the orders are set aside. Pursuant to section 81(1)(d) of the Civil and Administrative Tribunal Act 2013 the appellant must install the kitchen which was previously stored in the respondents' garage at 1 Vale Avenue Dee Why in a proper and workman like manner, including returning and installing the respondents' hot plate and under bench sinks on or before 9 May 2016. Pursuant to clause 8 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 the respondents have leave to renew the original proceedings HB15/17048 if the appellant fails to comply with order 2 within the time specified. The parties have liberty to apply to the Appeal Panel for an order to vary the time for the performance of the work specified in order 2. Any costs application pursuant to section 60 of the Civil and Administrative Tribunal Act must be lodged with the Appeal Panel and served on the costs respondent within 14 days of the date of these orders either attaching or referring to the documents relied upon in support of the application. The costs respondent will have 14 days after the date of receipt of the costs application referred to above, to lodge with the Appeal Panel and serve on the costs applicant the submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon. The cost applicant will have 14 days after the date of receipt of the cost respondent's submissions to lodge with the Appeal Panel and serve on the costs respondent the submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon. The Appeal Panel Tribunal will determine any costs application on the basis of the papers lodged with them.'
On 6 May 2016 after receiving submissions from the appellant the following orders were made: 1. pursuant to section 63 of the Civil and Administrative Act 2013 (NCAT Act) paragraph 61 of the Reasons for Decision of the Appeal Panel in these proceedings dated 11 April 2016 is amended by deleting the words: 'including returning and installing the applicants hot plate and under bench sinks on or before 18 April 2016', 1. pursuant to section 63 of the NCAT Act order 2 of the Appeal Panel in these proceedings dated 11 April 2016 is amended by deleting the words: 'including returning and installing the applicants hot plate and under bench sinks on or before 9 May 2016' 1. Pursuant to section 41 of the NCAT Act, the time for any costs application to be lodged with the Appeal Panel and served on the costs respondents under order 4 is extended to 14 days as from the date of this order. 2. The respondents must provide written submissions within 7 days as from the date of this order stating whether they consent to or oppose, and if so the reasons why, the making of an order under section 32(2) of the NCAT Act that they must, when the appellant attends the premises to perform the work order stated in order 2 of the decision dated 11 April 2016, either provide the measurements of the following items or the items themselves which are necessary for measuring up purposes to allow the appellant to perform the work order. The items are; hotplate, under bench kitchen sinks, washing machine, dishwasher, microwave and refrigerator.

Costs in the Consumer and Commercial Division

Our Reasons for Decision given on 11 April 2016, as amended, indicate that the original proceedings were heard in the Consumer and Commercial Division of the Tribunal on 3 July 2015, when final orders were made. At that time no costs orders were made. We are not aware that any application for costs was made as a consequence of the orders made on 3 July 2015.
An application to renew proceedings was made by reason of the appellant's alleged failure to comply with the 3 July 2015 orders. Those renewed proceedings were heard on 12 October 2015 when final orders were made. Order 3 stated that 'There is no order as to costs'.
The Notice of Appeal item 5A which relates to 'Orders Challenged on Appeal' does not challenge Order 3 as quoted in the preceding paragraph.
Because the appellant did not in its Notice of Appeal challenge Order 3 made on 12 October 2015, and also because the orders made by us under section 81(1)(d) of the NCAT Act did not deal with the issue of costs in the Consumer and Commercial Division, we are not inclined now to make an order for the costs of the proceedings below.
In addition, in our Reasons for Decision given on 11 April 2016, as amended, we made it clear that so far as costs were concerned, we would entertain an application for the costs of the Appeal. At paragraphs [58 - 59] we stated: 'So far as the costs of the Appeal are concerned we note that in Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120, an Appeal Panel of the Tribunal held that section 60 (Costs) of the Civil and Administrative Tribunal Act applies to the determination of costs in an internal appeal even if different costs provisions applied in the proceedings in the Tribunal at first instance. If a party wishes to make an application of the costs of the Appeal proceedings on the basis of section 60 of the Civil and Administrative Tribunal Act, we will make appropriate directions.'
For these reasons we reject the appellant's application for the costs of the proceedings in the Consumer and Commercial Division of the Tribunal

The costs of the Appeal

Section 60 (1) - (3) of the NCAT Act states: '(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.'
The appellant has filed submissions dated 27 April 2016, supplemented by further submissions in relation to costs dated 20 May 2016. The appellant's submissions dated 27 April 2016 consisted of a letter to the Appeal Panel of that date which enclosed correspondence between the parties' solicitors. The content of that correspondence did not specifically address the issue of costs.
The appellant's submissions of 20 May 2016 relate to events which occurred after the Appeal Panel's decision was handed down. The appellant's submissions do not address sections 60 (1) - (3) of the NCAT Act as extracted above.
The respondents filed submissions dated 9 May 2016.
First, the respondents' assert that the appellant has not complied with section 60(3)(a) of the NCAT Act.
However this submission relates to the appellant's performance of the contract between the parties rather than his conduct of the proceedings. We reject this submission as it does not relate to the appellant's conduct of the Appeal proceedings, as required by section 60(3)(a) of the Act.
Secondly, the respondents assert that the appellant has not complied with section 60(3)(b) of the NCAT Act because he did not mention that he was booked for an overseas holiday after the decision of the Tribunal on '11 November 2015' (sic). We assume that the reference to '11 November 2015' is an error and the intention is to refer to the decision of the Tribunal Member dated 12 October 2015, the subject of the Appeal. This ground must be rejected because it does not relate to the conduct of the Appeal proceedings and more fundamentally, because as the Reasons for Decision disclose, the appellant attempted to hand up a folder of documents to the Tribunal Member on 12 October 2015 which disclosed his overseas holiday, but was prevented from doing so with the result that his appeal was upheld. We reject this submission that the appellant has not complied with section 60(3)(b) of the NCAT Act because he did not mention that he was booked for an overseas holiday.
Thirdly, the respondents refer to section 60(3)(c) of the NCAT Act stating that the decision to allow the Appeal differed little from the orders of the Tribunal made on 3 July 2015. This submission while it may be correct makes no allowance for the Tribunal's 12 October 2015 decision which had the effect of undoing the 3 July 2015 orders. We reject this submission that section 60 (3)(c) of the NCAT Act affects the appellant's position. The appellant was after all successful in his appeal.
Fourthly, the respondents further rely on section 60(3)(b) of the NCAT Act because of the appellant's alleged conduct caused them to seek an enforcement of the Tribunal's 3 July 2015 orders. We reject this submission because it does not relate to the appellant's conduct of the Appeal proceedings.
Fifthly, the respondents submit that the appellant raised matters in his Appeal which they describe as relating to matters where the Tribunal had no jurisdiction to rule, namely alleged breaches of the Environmental Planning and Assessment Act 1979, which they submit is a matter relevant to section 60(3)(b) of the NCAT Act. We reject this submission on the basis that although the appellant raised the matters alleged in his Notice of Appeal, little if any time was spent on them in the Appeal.
Sixthly, the respondents submit that the Appeal Panel's orders effectively affirm the Tribunal's 3 July 2015 orders. Be that as it may, the fact is that the appellant successfully appealed against the Tribunal's 12 October 2015 orders which converted the Tribunals 3 July 2015 work order into a money order. This submission does not identify any element of section 60 of the NCAT Act in relation to which it is said to be relevant. Nor do we consider it to be relevant. Insofar as the respondents refer to Transfield Services (Australia) Pty Limited v James Gaha [2012] NSWSC 865, we do not see how that case which relates to a situation where there was no hearing on the merits and where Calderbank offers had been made, has any relevance to the Appeal proceedings.
The respondents also refer to section 60(3)(c) of the Act in what appears to be a submission that the appellant's claim had no tenable basis in fact or law. The basis of this submission is that the appellant's appeal did not disturb the Tribunal's 3 July 2015 decision. We do not accept this submission as it fails to recognise that the appellant's appeal was against orders that converted work orders to a money order. Put another way, the appellant's appeal did not seek to disturb the Tribunal's 3 July 2015 decision.
Insofar as the respondents refer to section 36(4) of the NCAT Act, there is no actual suggestion made by the respondents that the section has not been implemented.
In their conclusion the respondents have quoted from the Tribunal decision in Peter Doherty and Jane Swinhoe v Douglas Hertslet [2015] NSWCATCD. We do not see how the quotation is in any way relevant as it relates to a situation where there was no hearing on the merits. In any event that decision was set aside in Hertslet v Doherty; Doherty v Hertslet [2016] NSWCATAP 46 (23 February 2016).
The respondent's reference to Rule 38 of the Civil and Administrative Tribunal Rules is misconceived. In our Reasons for Decision given on 11 April 2016, as amended, we made it clear that so far as costs were concerned, we would entertain an application for the costs of the Appeal under section 60 of the Act. At [58 - 59] we stated: 'So far as the costs of the Appeal are concerned we note that in Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120, an Appeal Panel of the Tribunal held that section 60 (Costs) of the Civil and Administrative Tribunal Act applies to the determination of costs in an internal appeal even if different costs provisions applied in the proceedings in the Tribunal at first instance. If a party wishes to make an application of the costs of the Appeal proceedings on the basis of section 60 of the Civil and Administrative Tribunal Act, we will make appropriate directions.'
The respondent's claim their costs, presumably of the appeal in the sum of $12,000.00.
The parties' submissions regarding the question of costs refer to their respective conduct after the Appeal Panel's decision was given. They blame each other for creating an extremely difficult environment for the appellant to perform the work the subject of the Appeal Panels' orders. From the material provided by the parties it appears that there has been little co-operation between them to ensure that work orders made by the Tribunal were implemented in an orderly way.
Section 60(3)(f) of the NCAT Act states that in determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to whether a party has refused or failed to comply with the duty imposed by section 36(3) of the NCAT Act, which requires the parties to co-operate with the Tribunal and to comply with the directions and orders of the Tribunal.
At this point we are of the view that section 60(3)(f) of the NCAT Act relates to time before the making of the orders in the proceedings including in this case the order entitling a party to make an application for the costs of the Appeal. Further it is our view that it will be undesirable to make a costs order based on section 60(3)(f) of the NCAT Act when the facts are disputed and there is substantial material, as there is in this case, regarding the parties conduct and whether one or both of them has failed to co-operate with the Tribunal and to comply with the directions and orders of the Tribunal.

General principles regarding section 60of the NCAT Act

In CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 Principal Member Titterton stated after considering the relevant authorities: 'The authorities are consistent in stating that "special circumstances" are circumstances that are out of the ordinary; they do not have to be extraordinary or exceptional circumstances'
In MSP Consulting and Building Constructions Pty Ltd v Karkoulas (No 2) [2016] NSWCATAP 183, the appeal panel at [31] - [32] stated: 'In ACT Builders v Haridemos (No 2) [2016] NSWCATAP 118 at [41], the Appeal Panel noted that the mere fact a party was unsuccessful in their appeal does not of itself give rise to special circumstances warranting an order for costs in favour of the other party. The same principle is applicable when the appealing party is successful. The onus is on the party seeking an order for costs to satisfy the Appeal Panel that there are special circumstances warranting an award of costs in their favour.'
Having regard to the circumstances of the Appeal and the parties' submissions we have reached the conclusion that the appellant being the successful party in the Appeal has not established special circumstances to entitle him to a costs order under section 60 of the NCAT Act. The mere fact that he was successful does not, in accordance with what was stated in ACT Builders v Haridemos (No 2) [2016] NSWCATAP 118 give rise to special circumstances warranting an order for costs in his favour.
So far as the respondents' claim for their costs of the Appeal in the sum of $12,000.00 is concerned, none of the grounds relied by them as establishing special circumstances have been made out. For that reason, we find that the respondents are not entitled to a costs order in their favour under section 60 of the NCAT Act.

Orders

For the reasons provided, we order that each party to these appeal proceedings must pay their own costs.

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

Amendments 29 September 2016 - Corrected spelling of Appellants name 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: 29 September 2016

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Judgment (7 paragraphs)

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