News v Cotes

NCAT Appeal Panel|2019-07-05

Introduction

This is an appeal concerns a costs decision made by the Tribunal in relation to a dispute about a retail lease.
The history can be stated briefly.
The Tribunal had previously determined three applications. Two applications had been brought by the appellant (who was the tenant) and one which was bought by the respondents (who were the landlords).
The appellant's applications were COM 17/16467 and COM 17/16463 (tenant's applications). In those proceedings the appellant sought various orders including a claim for damages in excess of $180,000.
The respondents' application was COM 17/27172 (landlords' application). In that application the respondents claims included unpaid rent and interest and an order for possession.
By orders made 26 October 2018 the tenant's applications were dismissed. In respect of the landlords' application, the Tribunal made an order that the appellant pay the respondents the sum of $17,079.30 for unpaid rent and interest.
The respondents made an application for costs in relation to the tenant's applications. No application for costs was made in respect of the landlords' application.
On 10 April 2019 the Tribunal made a lump sum cost award in the sum of $100,000 in favour of the respondents against the appellant in respect of the tenant's application (costs decision). The Tribunal published written reasons for decision (Reasons).
The appellant appeals the costs decision. She filed a Notice of Appeal on 9 May 2019. The appeal was filed in time.
The appeal was heard on 5 July 2019, the parties having filed relevant evidence and submissions as directed by the Tribunal. At the hearing the parties made oral submissions.

Consideration

It is clear from the parties' submissions that the amount claimed or in dispute in respect of the tenant's applications was more than $30,000. Consequently, r 38 of the Civil and Administrative Tribunal Rules, 2014 (NSW) (Rules) applies. This is despite s 60 of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act), which otherwise provides that each party is to pay their own costs.
Because s 60 does not apply, a party claiming costs is not required to show special circumstances in order to enliven the Tribunal's jurisdiction to award costs. Rather, there is a general discretion to award costs even in the absence of special circumstances: eg Bonita v Shen [2016] NSWCATAP 159 at [38].
As explained in Bonita and cases such as Thompson v Chapman [2016] NSWCATAP 6, the following principles are relevant: 1. the starting point is that the usual order for costs should be made in that only a successful party should be entitled to an order for costs in their favour; 2. the award is to indemnify the successful party for the costs incurred in connection with the proceedings; 3. there is no absolute rule that a successful party should recover their costs, and a departure from the usual order is permissible, for example having regard to offers of compromise which had been made.
For the Appeal Panel to intervene, it is necessary for appellant to demonstrate that the discretion to award costs miscarried because of some relevant error.
The appellant contends that her improvements to the property during the course of the lease were relevant facts to be considered in the exercise of a discretion to award costs. We do not agree. A costs order is to compensate a party for costs incurred in the proceedings. The existence of any property rights and the ownership of any property in consequence of the resolution of a dispute is not a relevant factor to be taken into account in the award of costs, other than in the context of determining which party was successful and on what issues. In the present case, the appellant was wholly unsuccessful in her applications.
In relation to the offers of compromise, the Tribunal did not make a special order for costs. The amount awarded by the Tribunal was less than the full amount claimed. The award was not a complete indemnity for all costs. The appellant did not challenge the amount awarded other than on the basis that no costs order should be made in favour of either party.
The appellant did not refer us to any offer which would support a conclusion that the usual order for costs should not be made in favour of the successful party, in this case the respondents. This view is consistent with what the Tribunal said in the Reasons at [30].
In these circumstances, no relevant error of fact or law has been demonstrated, leave to appeal should be refused and the appeal should be dismissed.

Costs of the appeal

Rule 38A provides that r 38 applies in determining costs in this appeal. The respondents sought both dismissal of the appeal and their costs of the appeal.
The amount claimed or in dispute in this appeal is the amount of the costs award, namely $100,000. This is more than $30,000 being the amount prescribed in r 38. Consequently there is a general discretion to award costs consistent with the principles we have outlined above.
The respondents have been successful in this appeal. On the face of it, they are entitled to be awarded costs of the appeal. We will make an order to this effect with liberty for either party to apply should they contend for a different order.

Orders

The Appeal Panel makes the following orders: 1. Leave to appeal is refused and the appeal is dismissed. 2. Subject to order 3, the appellant is to pay the respondents' costs of this appeal, such costs to be as agreed or assessed on an ordinary basis. 3. In the event either party contends a different costs order should be made, the following order and directions are made: 1. Within 7 days from the date of the publication of these orders, the applicant for costs (costs applicant) is to file and serve any evidence and submissions in support of the application (costs application) whereupon order 2 ceases to have effect. 2. Within 14 days from the date of publication of these orders the respondent to the costs application is to file and serve any submissions in response. 3. Within 21 days from the date of publication of these orders the costs applicant is to file any submissions in reply. 4. The parties' submissions are to include submissions about whether an order should be made dispensing with a hearing of the costs application pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013.

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. Registrar 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: 22 July 2019

At a glance

Court

Decision date

Source

Judgment (6 paragraphs)

Parties

Cases Cited (2)

Cited By (22)