respondent. Appeal dismissed. No order as to costs of the appeal.
Key principles
For proceedings governed by s 88 of the Administrative Decisions Tribunal Act 1997 (NSW), the starting point is s 88(1): each party bears their own costs. The discretion in s...
The commercial nature of a retail lease dispute does not displace that statutory starting point or create a general rule that costs follow the event. The prospect that costs may...
A losing party's case being weak, or unsuccessful, is not by itself enough to justify costs under s 88(1A)(c). The reasoning adopted in Jonamill, drawing on the VCAT cases it...
An appeal concerning the exercise of a costs discretion is not a hearing de novo. The Appeal Panel will not admit new material without a satisfactory explanation where the appeal...
Issues before the court
Whether s 88 of the Administrative Decisions Tribunal Act 1997 (NSW) made costs follow the event in a commercial retail lease dispute.
Whether the Tribunal's refusal to award costs involved an error in exercising its discretion.
Plain English Summary
The landlord won the original retail lease case but did not automatically get her legal costs. The applicable statute started from each side paying its own costs and allowed a different order only if that would be fair after considering specified matters. The Appeal Panel decided that the commercial setting and the tenant's failure did not change that rule. It found no reviewable error in the Tribunal's assessment and refused to consider a settlement offer that had not been put before the Tribunal. The appeal was dismissed.
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Deep Dive
2,109 words · generated 29/09/2026
What happened
In Prieston v Panyiotou [2015] NSWCATAP 71, the NCAT Appeal Panel considered whether a landlord should receive her costs after successfully defending a tenant's retail lease application. The decision is principally about the costs regime that applied under s 88 of the Administrative Decisions Tribunal Act 1997 (NSW), rather than the substantive merits of the lease dispute.
Whether the Appeal Panel should admit the 2 April 2013 settlement offer, which was not before the Tribunal on the costs application.
Whether leave to appeal was required.
Cited legislation
4 cited instruments linked from this judgment.
The tenant had sought several forms of relief. These included changing the lease commencement date, a refund of rent, repairs to the premises and compensation for alleged business loss. The Tribunal dismissed the application. It found it had no power under s 72 of the Retail Leases Act 1994 (NSW) to change the commencement date without the parties' consent. It also found that the tenant had not established entitlement to compensation or shown that the landlord had failed to undertake necessary repairs. The Appeal Panel's summary of the underlying findings appears in the section titled “The Substantive Proceedings Below”.
After the substantive decision, the landlord sought costs. The Tribunal declined to order them, applying s 88 of the ADT Act. The landlord appealed, arguing both that costs should ordinarily follow the event in commercial cases and that the circumstances, including settlement offers and the tenant's lack of success, justified an award.
The Appeal Panel dismissed the appeal. It held that s 88(1), not a general commercial costs rule, supplied the starting point: each party bears their own costs unless the statutory exception applies. The Panel also made no order as to the costs of the appeal.
Why the court decided this way
The central interpretive question was whether the commercial character of a retail lease dispute changed the starting point under s 88. The Panel rejected that construction. Section 88(1) says each party is to bear their own costs, while s 88(1A) permits an award only if the Tribunal is satisfied that it is fair to do so, having regard to the factors set out in that subsection. The Panel described the proposed costs-follow-the-event starting point as contrary to the statutory intention. [Consideration and Disposition, 1-3]
The landlord relied on Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3. That decision had considered the change from a “special circumstances” test to a “fairness” test. As recounted in Prieston, Jonamill considered that costs orders could be more readily obtained in commercial matters. The Appeal Panel emphasised the limit of that reasoning: more readily obtainable does not mean automatically awarded to the successful party. [Consideration and Disposition, 4]
The Panel also addressed the statutory factor in s 88(1A)(c), concerning the relative strengths of the parties' claims, including whether a claim had no tenable basis in fact or law. It relied on Jonamill's discussion of VCAT decisions applying an analogous provision. Those authorities distinguished a merely weak or unsuccessful claim from one so weak as to be unarguable. The Panel concluded that the respondent's failure to prove her claims did not establish that her case was untenable. [Consideration and Disposition, 5, 8-12]
There was one qualification. The tenant's request to vary the lease commencement date could be regarded as untenable because the Tribunal found it lacked jurisdiction to grant that relief. But that was only one part of the tenant's application, and the Panel found it insufficient, by itself, to undermine the costs decision. [Consideration and Disposition, 9]
The Panel reviewed the Tribunal's actual reasoning and found it had applied the correct approach. The Tribunal had considered the nature and complexity of the case, the claims and why they failed, and the offer that was actually before it. It had also recognised that Jonamill did not require costs in every unsuccessful commercial case. The Appeal Panel found no appellable error in that assessment. [Consideration and Disposition, 13-15]
The offers required separate treatment. The Tribunal had considered a 7 June 2012 offer, but gave it little weight because it had not been made on the basis that it would be relied on in a costs application. The Panel found no error in that assessment. [Consideration and Disposition, 15]
A second offer, dated 2 April 2013, had not been before the Tribunal. The Panel rejected its admission on appeal because there was no satisfactory explanation for its omission from the costs material. An appeal about a discretionary decision was not a fresh hearing where the appellant could reconstruct the case on a new evidentiary basis. [Consideration and Disposition, 16-18] The Panel added that, even if admitted, the offer would not alter the outcome: it was a relevant consideration, but only one factor in the statutory fairness assessment. [Consideration and Disposition, 19]
Before and after state of the law
Before the decision, the relevant statutory framework had already changed. As the Appeal Panel recounted from Jonamill, from 1 January 2009 the s 88 criterion became “fairness” in place of the earlier “special circumstances” test. Jonamill reasoned that the new language could make costs orders more readily obtainable, particularly in the commercial context of retail lease proceedings. [Consideration and Disposition, 4]
Prieston clarified what that change did not do. It did not replace the express starting point in s 88(1) with a default rule that costs follow the event in commercial proceedings. The statutory discretion remained conditional: costs could be awarded only if the Tribunal was satisfied that an award was fair, considering the relevant statutory factors. The commercial nature of the proceeding was relevant to the assessment, but did not dictate the result. [Consideration and Disposition, 2-5]
The decision also clarified how the relative-strengths factor should be understood. A party does not become liable for costs merely because its claim ultimately fails or is later found to be weak. The Panel adopted the distinction, discussed in Jonamill, between weakness and a claim so weak as to be unarguable. [Consideration and Disposition, 5, 12]
The decision was made in proceedings governed by the ADT Act, even though the ADT Act had been superseded by the Civil and Administrative Tribunal Act 2013 (NSW). The Panel noted that proceedings such as this could still fall to be determined under the former Act. It expressly cautioned that different costs considerations apply to proceedings governed by the newer Act. [The Notice of Appeal - Is Leave Required?, 3] Accordingly, the decision's construction of s 88 is tied to that statutory regime. It should not, on the material in this judgment alone, be treated as a statement of the costs rules under the later Act.
Key passages with plain-English translation
The Panel stated: “The starting point is set out in s 88(1), namely that each party ... is to bear the party's own costs ... except as provided by s 88.” [Consideration and Disposition, 2] In plain English, losing a case does not itself decide who pays the other side's legal costs. The party seeking costs must bring the case within the statutory exception.
The Panel explained that Jonamill did not establish that “costs are always awarded to the successful party.” [Consideration and Disposition, 4] Put simply, the “more readily obtainable” description is not an automatic entitlement. It means commercial context can matter within the statutory assessment, not that it displaces the statutory text.
On unsuccessful arguments, the Panel said: “Even if the respondent's case was weak, that alone is not enough to fall within s 88 (1A)(c).” [Consideration and Disposition, 12] The practical distinction is between a case that loses and one that is so lacking in a tenable basis that it is unarguable. The judgment did not treat the tenant's failure to prove several claims as enough to establish the latter.
On new material, the Panel said that the appeal was “not a hearing de novo” and would not permit the appellant to challenge the discretion on a basis that could have been argued below but was not. [Consideration and Disposition, 18] In plain English, the appeal focused on whether the Tribunal's decision was wrong on the material it had, rather than giving the appellant an unrestricted opportunity to present omitted evidence afresh.
Finally, the Panel's alternative observation about the second offer is significant but limited. It said that even if admitted, the offer would not by itself make it fair to depart from the usual rule. [Consideration and Disposition, 19] That is not a general rule about settlement offers. It is the Panel's assessment of that offer alongside the other circumstances in this case.
What fact patterns trigger this precedent
The decision is most directly relevant to costs applications in proceedings that are governed by s 88 of the ADT Act. Its central setting was a retail lease claim in which the tenant lost, and the landlord argued that the commercial character of the dispute meant costs should follow the event. For that situation, the decision rejects an automatic commercial-case starting point and directs attention to the statutory test. [Consideration and Disposition, 1-6]
It is also relevant where a costs applicant argues that an unsuccessful opponent's case was untenable. The decision indicates that the fact of failure, or a finding that the case was weak, is not enough by itself. The question under the provision is whether the claim had no tenable basis, understood in the authorities discussed as so weak as to be unarguable. In Prieston, the jurisdictional failure of the lease-commencement claim did not establish that the tenant's whole case was untenable. [Consideration and Disposition, 8-12]
The decision may also be relevant where a party seeks to rely on a settlement offer in an appeal from a costs discretion. It distinguishes the offer actually considered by the Tribunal from the second offer omitted below. The first was assessed as a relevant but low-weight factor. The second was not admitted because the omission was not satisfactorily explained and the appeal was not a hearing de novo. [Consideration and Disposition, 15-19]
Its limits matter. The Panel expressly observed that costs considerations under the Civil and Administrative Tribunal Act 2013 are different from those under the ADT Act. The judgment therefore does not establish that its s 88 analysis governs cases under the later Act. [The Notice of Appeal - Is Leave Required?, 3]
How later courts have treated it
The judgment supplied here reports no later judicial or tribunal treatment of Prieston. It cannot, on its own, establish whether later courts followed, distinguished, limited or reconsidered its reasoning. The decision's own account of earlier authorities is more specific: it explains Jonamill and discusses Cripps v G&M Dawson Pty Ltd [2006] NSWCA 81 in the context of the statutory amendment and commercial costs. [Consideration and Disposition, 4-5]
For research purposes, the distinction between the judgment's holding and its account of prior law should be maintained. The holding is that s 88 did not make costs follow the event in commercial cases. The explanation of Jonamill is that the fairness test could make costs more readily obtainable, while still requiring a case-specific assessment under the statutory factors. The judgment itself does not provide a subsequent citation history or claim that its interpretation was later adopted elsewhere.
Still-open questions
The judgment leaves the practical application of “fair” under s 88(1A) dependent on the facts and the factors listed in the subsection. It does not prescribe how much weight commerciality should receive in a particular case, beyond rejecting the proposition that it makes costs follow the event. Nor does it set out a general weighting formula for offers, complexity, conduct or relative strength.
The treatment of an unsuccessful claim that appears legally unavailable is also fact-sensitive. The Panel considered that the claim to vary the commencement date could be regarded as untenable because the Tribunal lacked power to make that order. But it did not treat that single claim as sufficient to make the whole application untenable or to require a costs award. [Consideration and Disposition, 9-12]
The judgment does not comprehensively define the evidence or procedural circumstances that would amount to a satisfactory explanation for omitting material from a costs application. It found the explanation in this case inadequate and emphasised that the underlying discretion had been exercised on the material actually before the Tribunal. [Consideration and Disposition, 17-18]
Finally, the Panel expressly confined its discussion to proceedings governed by the ADT Act and noted that different costs considerations applied under the Civil and Administrative Tribunal Act 2013. [The Notice of Appeal - Is Leave Required?, 3] The judgment therefore leaves the analysis under the later costs regime outside its determination.
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Catchwords
COSTS: Retail Tenancy and commercial mattersChallenge to exercise of discretionwhether starting point is that costs follow event.
Judgment (10 paragraphs)
[1]
Overview
This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal whereby the Tribunal refused to order that the applicant in those proceedings, the respondent to this appeal, pay the costs of the proceedings. The original proceedings were heard under the provisions of the Administrative Decisions Tribunal Act, 1997 (NSW) (ADT Act) (see Panayitou v Prieston [2013] NSWADT 273). In that decision, the Tribunal dismissed an application by Ms Panayiotou, a tenant of Ms Prieston pursuant to a retail lease, for orders varying the terms of the retail lease, a refund of rent, repair of the premises and compensation. In reaching its decision the Tribunal had regard to the provisions of the Retail Leases Act 1994 (NSW).
The decision under appeal considered whether, having regard to s 88 of the ADT Act, it was fair for the applicant to pay the costs of the proceedings in which she was wholly unsuccessful. After analysing the relevant authorities, in the exercise of its discretion the Tribunal decided that there was no basis to depart from the usual position that there should be no order as to costs.
The appellant contends that the Tribunal erred in so finding. She submits that as the matter was a commercial matter and having regard to the authorities which have considered this issue, the starting point under s 88 of the ADT Act was that as the successful party she was entitled to her costs. She also submits that in any event having regard to, inter alia, the nature of the matter, the fact that two offers to resolve the proceedings were made by her but rejected by the respondent and the total failure by the respondent to achieve any success, the Tribunal ought to have exercised its discretion to award her the costs of the proceedings.
We disagree. For the reasons that follow, we would dismiss the appeal.
[2]
The Substantive Proceedings Below
The respondent was a tenant of the appellant of retail premises. She made an application for certain orders by way of a "retail tenancy claim" under the Retail Leases Act 1994 (NSW). The relief sought was summarised by the Tribunal at [6] of its reasons for decision. It is unnecessary to fully repeat them here. Relevantly, there were three types of principal relief sought by the tenant:
1. variation of the commencement date of the lease;
2. refund of rent; and
3. repairs to the premises.
The tenant also claimed compensation for loss of business by reason of the alleged breaches of the tenancy agreement by the landlord.
The evidence before the Tribunal on the substantive application comprised affidavits by the tenant, documentary evidence and a video. The tenant was cross-examined by counsel for the landlord. The respondent did not swear any affidavits or give oral evidence. She relied on three affidavits from her husband and affidavits from two real estate agents who had managed the property. Each of the deponents was cross-examined by the applicant.
In respect to the heads of relief sought by the applicant, the Tribunal found:
1. that, absent consent of the parties, it had no power under s 72 of the Retail Tenancies Act, to vary the lease so as to alter its commencement date;
2. that whilst there had been some repairs that were necessary with respect to electrical work and an awning, the applicant had not satisfied the Tribunal that the landlord had breached the lease such that she was entitled to compensation; and
3. that the Tribunal could not be satisfied that the landlord had failed to undertake necessary repairs.
In those circumstances, the Tribunal dismissed the applicant's claim.
[3]
The Costs Proceedings - The Decision under appeal
Following the substantive hearing, the landlord made an application that the tenant pay her costs of the proceedings on the ordinary basis as agreed or as assessed. The matter was determined on the papers following submissions by both parties.
The Tribunal correctly held that as the substantive proceedings had been commenced in the Administrative Decisions Tribunal and were determined by reference to the provisions of the ADT Act, in considering the issue of costs it was to apply s 88 of the ADT Act. That section provides:
88 Costs
(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.
(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:
(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or
(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or
(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or
(iv) causing an adjournment, or
(v) attempting to deceive another party or the Tribunal, or
(vi) vexatiously conducting 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) any other matter that the Tribunal considers relevant.
(2) The Tribunal may:
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.
(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.
(4) In this section, costs includes:
(a) costs of or incidental to proceedings in the Tribunal, and
(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.
[4]
The Notice of Appeal - Is Leave Required?
The appellant challenges the Tribunal's decision to reject her application for costs of the substantive proceedings. She seeks orders that the decision be set aside and, in lieu thereof, the respondent pay her costs at first instance and of the appeal.
The appellant has indicated that she seeks leave to appeal "if need be". In our opinion, leave to appeal is not required. The question on appeal concerned whether, where a commercial case has been dismissed, the proper construction of the relevant statutory provision (namely s 88 of the ADT Act) is that there should be an order for costs. This raises a question of law: see the discussion in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCA 280 at 287. In addition, the appeal concerns an "ancillary decision" of the Tribunal (being the decision on costs ancillary to its decision on liability) and as such, an appeal on a question of law lies as of right and does not require leave: see s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).
If leave is required, the appeal being solely concerned with the exercise of the discretion of the Tribunal with respect to costs, we would grant leave. Although the ADT Act has been superceded by the Civil and Administrative Tribunal Act 2013 (NSW) and different costs considerations will apply to proceedings governed by the latter Act, there are still proceedings, such as these, before the Tribunal which will fall to be determined under the provisions of the ADT Act. As such, it is important that the question as to whether in commercial cases, the proper starting point for costs under s 88 of the ADT Act is, as the appellant submits, that costs follow the event, be clarified. Being an important issue, we would grant leave: see Collins v Urban [2014] NSWCATAP 17 at [80]-[84].
In support of her application, the appellant states that she wished to rely on "the same evidence that was given at the hearing and for costs together with the said Calderbank offer of 2 April 2014 (sic 2013)…" and "if need be evidence that the said letter was filed with the costs application". This is a reference to the fact, as discussed in more detail below, that Tribunal did not have before it the Calderbank letter of that date.
[5]
The Reply to Appeal
The respondent's Reply to Appeal was prepared by Mr Stephen Hargreave, an advocate from People With Disability Australia. In that document the respondent opposed the relief sought on the bases that the Tribunal made no error in its decision and that the amount of costs incurred by the appellant, over $44,000, was excessive and ought to be referred to the Legal Services Commissioner. She opposed leave to appeal to the extent it was required.
[6]
Material Before the Appeal Panel
The Appeal Panel had before it the following material:
1. the Notice of Appeal;
2. the Reply to Appeal;
3. the principal decision of the Tribunal;
4. the costs decision of the Tribunal;
5. the appellant's Outline of Submissions dated 30 January 2015;
6. the affidavit of Matthew Grew sworn 1 February 2015;
7. the respondent's Submissions dated 18 February 2015; and
8. the letter from the solicitors for the appellant to the respondent dated 7 June 2012 offering to resolve the proceedings.
The Appeal Panel also had the benefit of oral submissions from Mr Sneddon, of counsel, for the appellant and Mr Hargreave for the respondent.
[7]
The Appellant's Submissions
Mr Sneddon submitted that, having regard to the authorities such as Jonamill Pty Ltd v Alramon Pty Ltd, the relevant passages of which are extracted above, and the terms of s 88 of the ADT Act, in commercial cases such as this the ordinary rule ought to be that if a party is unsuccessful costs ought to follow the event unless other circumstances are present which engage s 88(1A)(e) of the ADT Act. He submitted that in accordance with this ordinary rule, as the respondent was wholly unsuccessful in the proceedings, she should be ordered to pay the appellant's costs.
In the alternative, Mr Sneddon submitted that if the ordinary rule is not as he submits, then having regard to the reasons of the Tribunal in dismissing the respondent's claim, the fact that the appellant had made two offers to resolve the matter on better terms than the result achieved by the respondent and by application of the provisions of s 88 of the ADT Act, the Tribunal erred in failing to order that the respondent should pay the appellant's costs. In so far as that decision involved the exercise of the Tribunal's discretion, he submitted that the discretion miscarried such that the Appeal Panel ought to intervene and exercise the discretion to award costs to the appellant. Mr Sneddon accepted that the principles with respect to an appeal from the exercise of a discretion enunciated in House v The King (1936) 55 CLR 499 at 504-505 applied.
Mr Sneddon took the Appeal Panel through the reasons of the Tribunal in the principal proceedings. In particular, he referred us to the two offers to settle the proceedings made by the appellant. He submitted that as the respondent had been wholly unsuccessful, it was obvious that the appellant had achieved a better result than was contained in those offers.
In respect to the second offer, made by letter dated 2 April 2013, it was accepted that this offer was not before the Tribunal when the costs decision was made. Mr Sneddon relied on the affidavit of Mr Grew to seek to establish that it had been intended that this letter be filed with, and it was attached to, the submissions of the appellant on costs. However, an examination of the file showed that, in fact, the letter was not attached to the submissions. It appears that there had been an error made when those submissions were filed and the letter was not before the Tribunal and thus it cannot be said that it erred in failing to have regard to it.
[8]
The Respondent's submissions
The respondent, through Mr Hargreave an advocate from People with Disabilities Australia, submitted that there was no error in the Tribunal's decision with respect to costs. He submitted that the original claim was made by the respondent against her landlord in good faith. He noted that there had been no finding by the Tribunal of bad faith or that the proceedings were vexatious. There had been no findings that the evidence given on behalf of the respondent was untruthful, rather there had been no collaborative evidence and no independent expert evidence. He submitted that even if the respondent's case had been weak, it did not make it untenable. He submitted that it should not be the starting point that in commercial cases in the Tribunal, costs should be awarded to the successful party. To adopt such a position would be to go against the legislative regime in s 88.
He submitted that the appellant's costs were excessive and unreasonable given the respondent suffers from a disability and is unable to pay. He noted there was a serious inequality between the parties with the appellant represented by solicitors and counsel and the respondent appearing for herself at the hearing.
He submitted that the Appeal Panel should not have regard to the letter of 2 April 2013. If we do have regard to it, he submitted that we should give it little or no weight. He submitted that there had been offers made by the respondent to resolve the matter as well, but these were rejected by the appellant.
Mr Hargreave submitted that the appeal should be dismissed and each party should pay their own costs.
[9]
Consideration and Disposition
We reject the appellant's submission that the starting point or ordinary rule in commercial cases, including retail lease cases, where s 88 of the ADT Act is to be applied should be that costs follow the event. To adopt that position would be antithetical to the statutory intention evidenced by s 88 of the ADT Act.
The starting point is set out in s 88(1), namely that each party to proceedings before the Tribunal which are governed by the provisions of the ADT Act, is to bear the party's own costs in the proceedings except as provided by s 88.
Section 88(1A) then provides a discretion to the Tribunal which may award costs but only if it is satisfied it is fair to do so having regard to the matters set out in (a)-(e) of that sub-section. The clear language is far removed from the starting position suggested by Mr Sneddon. Indeed, it is the opposite.
Mr Sneddon's reliance on Jonamill and the authorities cited in the passage extracted above, does not support his submission on this issue. That case compared and contrasted amendments to s 88 of the ADT Act which had the effect of inserting the criterion of "fairness" in lieu of "special circumstances". In those circumstances, the Appeal Panel, after considering the decision of the Court of Appeal in Cripps v G&M Dawson Pty Ltd [2006] NSWCA 81, said that the criterion of "fairness", as opposed to "serious unfairness" mentioned by Santow JA meant that there are good grounds for believing that in commercial matters costs orders should be more readily obtainable. This does not mean that costs are always awarded to the successful party.
Indeed, the Appeal Panel then went on, at [31]-[33], to consider two decisions of the Victorian Civil and Administrative Tribunal (VCAT) that considered the analogue provision to s 88. The extracts from those authorities make it plain that the Tribunal, in assessing whether or not to exercise its discretion to award costs under s 88, must consider the factors in s 88 (1A) in forming a view as to whether it would be "fair" to award costs. In particular, the VCAT cases considered the analogue provision to s 88 (1A)(c) and held that just because a party's case is weak, does not mean that there should be an order for costs and that "untenable" in this context meant so weak as to be unarguable. Such an approach was not disapproved of by the Appeal Panel in Jonamill.
[10]
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: 29 April 2015
Parties
Applicant/Plaintiff:
Prieston
Respondent/Defendant:
Panyiotou
Legislation Cited (4)
Administrative Decisions Tribunal Act 1997(NSW)
Tribunal (the Victorian Civil and Administrative Tribunal Act 1998(Vic)
Appeal dismissed. No order as to costs of the appeal.
The Tribunal referred to Jonanmill Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3. In that case, the Appeal Panel of the NSW Administrative Decisions Tribunal dealt with the principles applicable to costs applications under s 88 of the ADT Act, in particular in matters dealing with retail leases. It is convenient to set out the relevant passages from that decision at [25]-[28] and [31]-[33]:
[25] The current version of section 88, in which the criterion of 'fairness' stated in subs (1A) has replaced a rule that in the absence of 'special circumstances' no costs might be awarded, became operative on 1 January 2009.
[26] Subparagraph (d) of subs (1A) of section 88 requires the Tribunal to take account of the 'nature' of the relevant proceedings. In cases applying the earlier criterion of 'special circumstances' (see for example Gizah Pty Ltd v AXA Trustees Ltd (No 2) [2001] NSWADT 164), it was consistently held that because of the 'commerciality' of proceedings in the Retail Leases Division the interpretation of the phrase 'special circumstances' should differ significantly from the interpretation that might be adopted in any other Division of the Tribunal. In Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81, the Court of Appeal held that the costs of proceedings in the Tribunal under the RL Act, both at first instance and on appeal, should be awarded against the lessors. At [60], Santow JA said: 'While a finding of "serious unfairness" is not a prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration.'
[27] Because the criterion is now one of 'fairness', as contrasted with the notion of 'serious unfairness' mentioned by Santow J, there are good grounds for believing that costs orders should be more readily obtainable. In Salon Today Pty Ltd v M M I R Pty Ltd [2009] NSWADT 71 (a case within the Retail Leases Division), the Tribunal advanced this proposition. At [72], it stated:
What the Parliament has done, in its 1 January 2009 amendments, is recognise that there is a need for this Tribunal to be more flexible and widen the scope of a litigant's entitlement to costs. This is a concept generally that is now accepted in this Division, and certainly touched upon by the Court of Appeal in Cripps, and the result of this re-assessment by the Parliament is a different test, a test of fairness, having regard to a number of parameters/factors.
[28] In Rucom Pty Ltd and Anor v Multiplex & Ors [2010] NSWADT 1, a very recent decision in proceedings under the RL Act, the Tribunal, after referring to the Gizah and Salon Today decisions, said (at [37]):
So, it is plain to me that, not only is this Division a commercial division dealing with commercial issues between lessors and lessees in a retail lease environment, but, in addition, proceedings should only be commenced in this Tribunal after very careful consideration of the merits of the case: … After all, commencing proceedings without such consideration inevitably results in considerable expense being incurred by the other party and one might not unreasonably ask: "why should the other party have to bear those expenses when the proceedings should not have been commenced in the first place?
[31] With particular reference to the interpretation of section 88(1A)(c), however, two cases decided in the Victorian Civil and Administrative Tribunal ('VCAT') suggest that an award of costs should not be made merely because the case put forward by the losing party was 'weak'. These cases relate to the statutory provision governing costs in the Tribunal (the Victorian Civil and Administrative Tribunal Act 1998 (Vic), section 109), on which the new version of section 88 is based. This provision contains a subparagraph in the same terms as section 88(1A)(c).
[32] In the first of them, Dennis Corporation Pty Ltd v Casey CC (Red Dot) [2008] VCAT 691, the Tribunal said:
14 The relative strengths of the claims appear to refer to the strength of claims of one party compared to the strength of the claims of another. A difficult, doubtful or test case might be necessary to clarify the legal position of the parties. It is probably seldom that an order for costs would be made having regard to this consideration alone where there was a real issue to be tried and real justification for the claims made on either side. I take it that it is generally where there is a very weak case for one side, or none at all, that this consideration is likely to lead to an order for costs. I note that the wording says that the absence of a "tenable basis in law or fact" is a consideration included within the consideration of the relative strengths of the claims of the parties.
15 This certainly cannot mean that an unsuccessful party should be required to pay costs because, at the end of the case, that party's claims have been found to be untenable in fact or law to the extent that they were not upheld and were not successful. That would amount to "costs following the event". It would compromise the general rule created in s 109(1).
16 As I have said, I do not think that the consideration indicates an order for costs where there are strong cases on either side, or perhaps evenly balanced cases on either side.
17 I am not minded to go so far as to say that a weak case will necessarily indicate an order for costs. The word "untenable" is stronger than "weak". The Macquarie Dictionary, second revision, defines untenable as incapable of being held against attack, incapable of being maintained against argument, as an opinion, scheme etc.
18 The ethical rules of the Bar, as I recall them, indicates that a barrister has a duty to do his or her best by the client even if the client has a weak case. On the other hand, a different duty applies if the case is so weak as to be unarguable or "untenable". It extends to a case that is so weak that it should not be argued or so weak that it would be an abuse to seek to maintain it.
19 I think "untenable" in the context of s 109(3)(c) means something like so weak as to be unarguable, rather than merely weak.
[33] In the second case, Winky Pop Pty Ltd v Hobsons Bay CC [2008] VCAT 1512 at [7], the Tribunal said:
Although the applicant was ultimately unsuccessful in its application, I do not believe that its case was so weak as to be untenable in fact or law. I endorse the comments of Senior Member Byard in Dennis in relation to this issue. I agree with the applicant that, although I indicated in my reasons that the applicant's case in relation to its access to material was "disingenuous" to a panel process that it well understood, I certainly did not consider the applicant's case to be completely unarguable, unreasonable or untenable in a manner that would clearly justify an award of costs having regard to the relative strengths of the arguments put by each party. This was simply a case where both parties raised and carefully articulated a number of matters of fact and law before the Tribunal, and the applicant was ultimately unsuccessful in persuading the Tribunal to support its view.
Having considered those principles, at [11]-[16] the Tribunal noted the respondent's (the appellant in this appeal) submissions and those made on behalf of the applicant. At [19]-[24] the Tribunal set out the history of the proceedings and background to the applicant's claim. The Tribunal referred to its findings in the principal proceedings and the reasons why the applicant's claim was dismissed.
The appellant sought to tender the second offer dated 2 April 2013 at the hearing of the appeal. We provisionally received it and allowed Mr Sneddon to address us on it and indicated we would rule on whether we would take it into account in our decision. Whilst the respondent did not point to any prejudice she would suffer if we admitted it, for the reasons identified below, we do not think it should be admitted. Even if we did admit it, we do not think it alters the outcome of the appeal.
Mr Sneddon took us in some detail to those parts of the Tribunal's reasons in the principal decision where it dealt with the respondent's case and why that case failed. He did this to identify both how his client had offered to resolve the proceedings on terms much more favourable to her than she achieved, but also to point out that at least in respect to the claims for variation of the commencement date of the lease and with respect to quiet enjoyment were bound to fail. In respect to the variation of the date of the lease, the Tribunal held at [58] that it did not have power under s 72 of the Retail Leases Act 1994 (NSW) or otherwise, to make such an order. As to the claim for breach of the covenant of quiet enjoyment, at [70] of the Tribunal's principal reasons, it was said that there was no basis for the respondent's claim about the landlord refusing to move the fuse box from the leased premises, nor that the fuse box interfered with her quiet enjoyment of the premises. Mr Sneddon suggested these references indicate a strong rejection of claims which ought not to have been made by the respondent. He suggested the use of the words "no basis" by the Tribunal indicated that there was no legal basis for those claims being made at all and they were unarguable.
Mr Sneddon did accept that with respect to the claim for repairs and for the loss of business, the Tribunal rejected those claims on evidentiary bases rather than finding there was no legal basis for bringing them (see [79] and [81] of the principal reasons).
Mr Sneddon submitted that when one considered the findings made by the Tribunal in the principal proceedings, it can be seen that the discretion it exercised under s 88 of the ADT Act in respect to costs had miscarried. He referred to Oshlack v Richmond River Council (1998) 193 CLR 72 at [65] in support of his submission that the discretion to be exercised judicially in accordance with established principles and factors directly connected to the proceedings. As we have observed above, he accepted that the principles enunciated in House v the King, supra, applied such that it is not enough that the Appeal Panel considers it would have reached a different conclusion if it were exercising the discretion, but that there must be some error in the exercise of the discretion by the Tribunal making it plainly unreasonable or unjust.
Mr Sneddon took the Appeal Panel through the reasons of the Tribunal in the costs decision. He submitted that the Tribunal erred in failing to find that the appellant ought to have its costs because it was a commercial case and it had made genuine offers to resolve the dispute on bases more favourable to the respondent than she achieved. He submitted that the proper application of s 88 of the ADT Act to the facts as found by the Tribunal would mean that the appellant should have been successful on her costs application.
He accepted that he did not submit to the Tribunal (either at the principal hearing or in his submissions on costs) that the respondent's case had no tenable basis in fact or law. He submitted, however, that he was able to argue that here (see Suttor v Gondowda Pty Ltd (1950) 81 CLR 418). In any event, he submitted that plainly the respondent's case was weak and she ought to have accepted the offers made to her by the appellant.
In respect to the amount of costs, Mr Sneddon submitted that if it was otherwise thought that the appeal should succeed, the Appeal Panel could decide what was fair. He submitted that the matters raised by the respondent as to the amount of costs incurred by the appellant being excessive and unconscionable, are not to the point. Costs are not being sought on the indemnity basis and there is no cause for the Appeal Panel to review the amount charged by the appellant's lawyers nor any basis for a reference of this issue as sought by the respondent.
In our opinion, in this case there is no error in the Tribunal's approach to the issue of the costs. It started from the position that each party was to pay their own costs. It then considered the relevant statutory criteria in s 88, to assess whether it was fair that the respondent, having failed in the proceedings below, ought to pay the appellant's costs. After considering those matters, it decided there was no basis to depart from the ordinary rule.
The question then becomes whether the exercise of the Tribunal's discretion miscarried. We do not think it did.
We reject Mr Sneddon's submissions that the Tribunal's references to there being "no basis" for certain parts of the respondent's claim indicated that the Tribunal regarded them as untenable. Save for the claim for a variation of the commencement date of the lease, we read those parts of the Tribunal's reasons in the principal proceedings rather as reflecting the findings of the Tribunal that on the evidence presented to it, the respondent had not made out her claim for refund of rent, repairs of loss of business. Nowhere is there a finding which would justify the conclusion that the respondent's claims on those issues in the principal proceedings were untenable, in the sense that they were unarguable.
In relation to the variation of the commencement date of the lease, the Tribunal found it had no jurisdiction to make such an order. In that sense, that aspect of the respondent's claim may be seen as untenable. However, it was only a part of the respondent's claim and this finding alone is not enough, in our opinion, to infect the Tribunal's decision.
As we have observed at [30] above, Mr Sneddon accepts he did not submit to the Tribunal that the respondent's case was untenable. Indeed, the extract of his submissions at [12] of the Tribunal's reasons in the costs decision, indicates that he criticised the pleading and presentation of the respondent's case. He submitted that the evidence and law relating to the claim "was reasonably complicated" so as to justify the briefing of counsel. If it was thought that the case below was untenable, and that this was relevant to the exercise of the discretion under s 88(1A)(c) or (e), such a submission ought to have been put.
Even accepting that the appellant is not now precluded from arguing on appeal that the respondent's case was untenable, such a proposition has not been demonstrated by reference to the evidence that was before the Tribunal. We were not taken to any of the pleadings or evidence to substantiate such submission. We are unable to accept that on the material before us, the respondent's claim as a whole was untenable.
Even if the respondent's case was weak, that alone is not enough to fall within s 88 (1A)(c): see Jonamill, supra at [31]-[33] and the cases there cited.
As to the consideration by the Tribunal in the costs decision of the relevant criteria in s 88(1A), we see no appellable error in the Tribunal's reasons. The Tribunal recounted the history of the proceedings, the various aspects of the respondent's claim and the reasons for them failing. At [25] the Tribunal stated its understanding of the basis of the claim for costs, namely the nature and complexity of the proceedings as well as the respondent being unsuccessful on all grounds. It paid proper regard to the decision in Jonamill (see [26]-[27]) including that in commercial cases, costs orders should be more readily obtainable. It correctly observed that Jonamill does not stand for the proposition that a costs order should be made in all circumstances where a party is unsuccessful in their claim.
As to the complexity of the proceedings, the Tribunal held (at [28]) that the proceedings were not complex but the material filed by the respondent was lengthy and at times difficult to understand by reason of her not being legally represented. This is not unusual in Tribunal proceedings and a party should not be penalised for it. We see no appellable error by the Tribunal in these passages.
In relation to the offers made by the appellant to resolve the matter, the Tribunal considered this issue at [30]-[36]. It had only the offer made on 7 June 2012 before it. The Tribunal noted that the offer was not made on the basis that it would be relied upon for the purposes of a costs order and, whilst still a relevant factor under s 88(1A)(e), it was of little weight. We do not see any error in the approach of the Tribunal in relation to this letter.
Mr Sneddon seeks to rely upon a second letter offering to resolve the proceedings. That is the letter dated 2 April 2013. This letter was not before the Tribunal and, accordingly, could not have impacted on the exercise of its discretion.
We do not consider that we should admit the letter on the appeal. There is no satisfactory explanation as to why it was not before the Tribunal. The affidavit of Mr Grew is wrong in so far as it asserts that the letter was attached to the appellant's submissions on costs. He also says that it was intended that the letter of 2 April 2013 be put before the Tribunal. But it was not and there is no satisfactory explanation as to why.
As this is an appeal dealing with the exercise of the Tribunal's discretion, and not a hearing de novo, we do not consider that we should allow the appellant to seek to interfere with that discretion on a basis it did not, but could have, argued below. The Tribunal exercised its discretion based on the material before it. It is that exercise of discretion that the appellant seeks to impugn. If the letter had been before the Tribunal but it had failed to take it into account, there may have been a legitimate basis to assert that the exercise of the discretion miscarried. However, that is not this case. We reject the tender of the letter of 2 April 2013.
Even if we did admit the letter, however, we do not think it alters the outcome of the appeal. Whilst the offer is a relevant factor to take into account under s 88(1A)(e), it is but one of the matters to be considered by the Tribunal. It is true that the offer was made on the basis it would be relied upon in a costs application and offered to resolve the case on a basis more favourable to the respondent than the result she achieved. However, on the material before us and having regard to the other reasons of the Tribunal as to why the respondent's claim was dismissed, we do not think that on this basis alone, or in combination with the other matters relied on by the appellant, it would be fair to the respondent to depart from the usual rule that each party bear their own costs of the proceedings.
For the above reasons, we do not accept the appellant's arguments that the Tribunal erred in the exercise of its discretion.
The orders we make are:
1. The appeal is dismissed.
2. There is no order as to costs of the appeal.