MPP Property Pty Ltd v Soliman Hospitality Pty Ltd

NCAT Appeal Panel|2021-03-22

Summary

These reasons deal with two issues: 1. The respondent's application for costs on the appeal; and 2. The respondent's Application for Miscellaneous Matters filed 7 May 2021.

Background

The full background to this appeal appears in our reasons for decision published on 12 April 2021: MPP Property Pty Ltd v Soliman Hospitality Pty Ltd [2021] NSWCATAP 90 (the principal decision).
The appellant had sought to appeal from five decisions of the Consumer and Commercial Division of the Tribunal (Tribunal).
The first decision was made on 1 July 2020. The Tribunal refused to adjourn a hearing which was to be held on 6 July 2020.
The second decision was made on 2 July 2020. Again, the Tribunal refused to adjourn the hearing which was to be held on 6 July 2020.
The third decision was made on 6 July 2020. The Tribunal refused to adjourn the hearing which was to be held that day.
For those three appeals, the appellant required an extension of time in which to file the appeal. We decided not to grant that extension and accordingly dismissed the appeal.
The fourth decision was made on 20 October 2020. This was the substantive decision of the Tribunal in this matter. We considered that the appellant had not identified any error of law, or any other error in respect of which leave to appeal should be granted. Accordingly, the appeal was dismissed.

Costs

At the conclusion of the principal decision we stated: 96. If the respondent seeks an order for costs, it should file submissions identifying the relevant costs rule, the reasons why costs should be awarded and the basis on which costs should be awarded on or before 22 April 2021.Those submissions should be limited to three pages. 97. The appellant may respond on or before 10 May 2021, limiting its submissions to three pages. 98. The respondent may provide submissions in reply on or before 17 May 2021. 99. The Appeal Panel proposes to deal with the questions of costs on the papers. If either party disagrees, it should address that matter in its submissions.
The respondent filed written submissions on 22 April 2021. No submissions were received from the appellant.
The respondent had no objection to us dealing with costs on the papers and without a hearing. Accordingly, we direct pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to dispense with a hearing as we are satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to us.
We accept the respondent's submissions that it is entitled to an order that the appellant, which was entirely unsuccessful in the appeal, should pay its costs.
Rule 38A of the Rules empowers the Appeal Panel to award costs in an Internal Appeal where r 38 of the Rules applied to the proceedings at first instance: (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 amount in dispute in the proceedings at first instance before the Tribunal was $585,609.59 plus interest and costs.
The relevant costs rule therefore is r 38(2)(b) of the Civil and Administrative Tribunal Rules 2014 which empowers the Tribunal to award costs in the Consumer and Commercial Division where the amount claimed or amount in dispute is more than $30,000.00. That rule provides: "(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 - _ … (b) the amount claimed or in dispute in the proceedings is more than $30,000."
Accordingly, r 38A of the Rules applies to the proceedings in this appeal as r 38 applied to the proceedings at first instance, and the Respondent is entitled to its costs without the need to otherwise establish "special circumstances" in accordance with s 60(2) of the NCAT Act.
We conclude therefore that the appellant must pay the respondent's costs of the appeal, as agreed or as assessed.

Application for miscellaneous matters

We turn now to the respondent's Application for Miscellaneous Matters filed 7 May 2021 (Application for Miscellaneous Matters) that raises for our consideration some matters arising by virtue of the outcome of the appeal.
The respondent seeks the following orders: 1. The Stay Order dated 10 December 2020 is lifted. 2. The monies of $106,394.69 held in the trust account of Gartree Thomson Lawyers pursuant to order 2 of the Stay Order dated 10 December 2020 ("Trust Monies") are to be released to (or as directed by) the Respondent … 3. The Appellant … is to pay [the respondent's costs] of this Application. 4. Any other order the Tribunal deems fit.
The background is that on 9 December 2020 the Appeal Panel made the following orders: STAY ORDER: 1. The operation of the order 2 made on the 26/10/2020 in matter number COM 19/38783 is stayed until further order of the Tribunal. 2. The preceding stay order is conditional upon the Appellant paying $106,394.69 on or before 16/12/2020 to the Respondent's solicitors trust account and on the further condition that the solicitor undertakes to hold the money in trust pending further order. 3. The Respondent is free at any time to make an application for the stay granted by these orders to be lifted, if the condition is not complied with or if there are any other sufficient grounds for doing so.
Order 2 made on 26 October 2020 in matter number COM 19/38783 required the appellant to pay the respondent $112,177.64, that is, an amount which exceeded the trust monies of $106,294.69.
On 15 April 2021 the respondent's solicitors wrote to the appellant's solicitors requesting the release of the trust monies. No response was received.
A copy of the letter from the respondent's solicitors to the appellant's solicitors dated 15 April 2021 was attached to the Application for Miscellaneous Matters.

Consideration

The stay should have been lifted upon the completion of the (appellant's unsuccessful) appeal, and we make that order now.
As to the release of the trust monies and any order as to costs, our preliminary view is that: 1. the trust monies, which were the "price" of the stay of the order 2 of the Tribunal (the order otherwise having to be complied with), should now be immediately paid to the respondent, or otherwise as directed by the respondent. 2. as the stay was in place until further order of the Appeal Panel, we are of the view that there should be no costs order in relation to this Application for Miscellaneous Matters, despite the respondent being successful.
For convenience, we have described these as the "two proposed orders".
However, we are conscious that the appellant has not yet been afforded any opportunity to make submissions on the two proposed orders.
If the appellant opposes us making those two proposed orders, we direct it to provide written submissions to the Appeal Panel and the respondent on the lifting of the stay and costs within seven days of publication of these reasons. If it does not do so, we will then make the two proposed orders immediately. If the appellant does provide written submissions, the respondent may reply within a further seven days.
We direct the respondent to provide written submissions on its costs of the Application for Miscellaneous Matters within seven days of publication of these reasons. If the respondent does provide written submissions, the appellant may reply within a further seven days.
We will then make a decision on both issues on the papers, that is without a hearing. If either party opposes that course it should address that matter in its submissions.

Orders

The Appeal Panel orders: 1. A hearing in relation to the respondent's costs application is dispensed with. 2. The appellant is to pay the respondent's costs as agreed or as assessed. 3. The stay of 9 December 2020 is lifted. 4. The monies held in the appellant's solicitors trust account are to be paid to the respondent immediately. 5. Direct the appellant to file and serve on the respondent written submissions on the lifting of the stay and costs of the Application for Miscellaneous Matters within seven days of publication of these reasons. 6. The respondent may file and serve any reply within a further seven days after receipt of the appellant's submissions. 7. If the appellant does not file and serve submissions in accordance with order 5 above, the following orders will be made and take immediate effect: 1. all trust monies held in the trust account of Gartree Thomson Lawyers pursuant to order 2 of the Stay Order dated 10 December 2020 are to be immediately released to (or as directed by) the Respondent; 2. there be no order as to the costs of the Application for Miscellaneous Matters. 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: 19 May 2021

At a glance

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Judgment (6 paragraphs)

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