In our decision Sinclair v Camnet Finance Pty Ltd [2022] NSWCATAP 32 (the "principal decision") we dismissed the appellant's appeal from a decision of the Tribunal dismissing her claim that she be relieved from liability under the terms of a guarantee she signed in support of a commercial agreement entered into between the respondent and Sinclair Recruitment (NSW VIC Gold Coast) Pty Ltd ("Sinclair Recruitment").
The respondent has sought its costs of the appeal.
These reasons assume familiarity with our reasons in the principal decision.
We are satisfied that the costs issues for determination can be adequately determined in the absence of the parties by considering their written submissions and the other documents lodged with them and accordingly we dispense with an in-person hearing on costs. We note the respondent consented to that course, and the appellant neither consented nor opposed it.
[2]
The Costs Application
The successful respondent seeks its costs on the basis, put shortly, that the amount claimed or in dispute on the appeal was greater than $30,000 and thus fell within the terms of r 38(2)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW).
We accept the respondent's submissions that all other conditions for the application of r 38 are satisfied and this application falls to be determined according to whether the amount "claimed or in dispute" on the appeal was greater than $30,000.
The respondent correctly submits that the appellant, in the Tribunal at first instance,
"… expressly sought from the Tribunal at first instance an order relieving her of liability to pay the sum of $31,164.72 (First Decision at [3]) …"
The respondent also correctly submitted that the appellant's
"… appeal concerned the Tribunal's purported failure to make that order in the First Decision."
On that basis, the respondent submitted the amount "claimed or in dispute" on the appeal was $31,164.72. That sum appears to originate from Termination Notices dated 22 April 2021 sent to Sinclair Recruitment and the appellant guarantor.
The appellant made the following submissions:
"1. NCAT is a means whereby consumers can seek a ruling both quickly and with less cost than seeking a court ruling. As I am without work and have two dependants this was the obvious choice for me.
2. I did not seek legal advice as I believed in the strength of my argument
3. When Camnet told the Members they wanted to appoint a lawyer, and I commented I felt outgunned, none of the members told me I would be held liable for costs because Camnet decided to appoint legal counsel. If I had been told this I would have strenuously fought against any legal person representing Camnet, as I clearly have no funds for lawyers and nor can I afford someone else's.
4. The dispute did not involve any dollar amount. The dispute involved whether or not Camnet could begin proceedings again someone who was not a stakeholder in an organisation and whether or not a "Personal Guarantee" could be enforced if the Credit Act had not been followed. Therefore Rule 38(2)(b) should not be applicable as the dispute and the orders sought were not over an amount.
5. NCAT instructed Camnet that if they wished to have a "Dollar order" they should use the applicable means. Camnet has now commenced those proceedings. To enforce a cost order on an NCAT Tribunal would allow two bites of the legal cherry.
6. I further note that, during the NCAT proceedings, I advised the presiding Arbitrator that we had returned the photo copier in question to Camnet in "as new" condition. This was done as an act of good faith, misguided as it turns out. The Arbitrator suggested to Camnet that an allowance should be made, in relation to the value of the photo copier, to the claimed outstanding amount. No such allowance has been made as they continue to claim additional costs.
7. NCAT regulations state that the Applicant should have limited their request to one page.
8. In conclusion, Camnet is now suing and they have possession of the photocopier. I am jobless and paying for a photocopier that I do not have. I, perhaps naively, believed the system to at least be fair. There was no dispute over a dollar amount before NCAT, therefore clause 38 should not apply."
In response, the respondent relevantly submitted:
"In respect of paragraphs 5 and 8 of the Appellant's Cost Submissions - the Appellant's belief that separate proceedings has been commenced by the Respondent against the Appellant is incorrect. We are not aware of any such legal proceedings.
In respect of paragraph 6 of the Appellant's Cost Submissions - it appears that the Appellant has conflated the issue of costs of the appeal proceedings with damages that could be claimed by the Respondent against the Appellant."
[3]
Decision
We are not satisfied that the amount claimed or in dispute on the appeal was greater than $30,000 and thus do not accept that r 38(2)(b) is engaged.
In Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 the Appeal Panel, when considering the word "claimed" in r 38(2)(b), said at [43]:
"In the case of an internal appeal, the "amount claimed … in the proceedings" can be determined by considering what orders the appellant seeks on the appeal. If those orders sought include an order that the respondent pay a sum of more than $30,000, expressly or impliedly, then the Tribunal should conclude that the amount claimed in those proceedings was more than $30,000. If the substantive orders sought do not involve any express or implied claim to any amount, it is difficult to see how there is any "amount claimed" for the purposes of r 38(2)(b)."
In the present case the appellant did not seek any order that she be paid any amount. Rather, she sought a declaration that she was not liable to the respondent for $31,164.72. In other words, the appellant did not claim any amount of money. Hence, per the last sentence of Allen in [47], the substantive orders did not involve any express or implied claim to any amount. The word "claim" does not extend to the seeking of an order to be relieved of a liability to pay a certain amount.
Were we wrong about that, we are of the opinion that the amount "claimed" is not what a legally untrained and unrepresented person thinks might be the relevant amount, but what is the true amount owed under the guarantee and thus the true amount from which relief from liability is "claimed". Our reasons for so finding are the same as those given in Allen in relation to the words "in dispute" to which we will now turn and interpreting the statutory words against the background that many litigants in the Tribunal are not legally represented, and indeed are prevented from being represented unless leave is given otherwise, and a statutory provision such as r 38(2)(b) would operate capriciously in circumstances such as the present if the word "claimed" meant something other than the amount truly claimed (or not "unrealistically" claimed to use the wording of Allen quoted below).
In relation to the words "in dispute" in r 38(2)(b) the Appeal Panel in Allen said:
"[57] Adapting these principles to the circumstances of the present appeals and having regard to the specific wording of r 38, it appears to us that in applying r 38(2)(b):
(1) The determinative factor is the amount in dispute in each appeal, not the amount in dispute in the proceedings at first instance;
(2) The phrase "in dispute" is to be construed as meaning truly in dispute or at issue or, inversely, not unrealistically in dispute;
(3) Whether "the amount … in dispute" in each appeal is more than $30,000 depends on whether there is a realistic prospect that in each appeal the wealth of the appealing party would be changed by more than $30,000 or, put another way, whether the right claimed by the appealing party, but denied by the decision at first instance, prejudices that party to an amount in excess of $30,000;
(4) The fact that the value of the property the subject of any appeal exceeds $30,000 does not, of itself, mean that "the amount … in dispute" in that appeal is greater than $30,000."
We accept that the appellant's seeking of relief from liability under a guarantee meant that there was some amount in dispute, being the amount due under the guarantee. But what that amount truly was is another question.
Thus, the question in this case is what amount was truly in dispute on the appeal.
As a matter of substance, what the appellant was after was an order relieving her from liability under the guarantee whatever the amount. She sought an order to that effect and expressly referred to the sum of $31,164.72 because, we infer, that was the amount claimed by the respondent in the Termination Notices to which we have referred.
But that amount may not be the amount truly in dispute between the parties. That is because the amount claimed by the respondent in the Termination Notices may not be the correct amount owed under the guarantee. For example, that amount (assuming it to be an accurate calculation of the primary liability) might be reduced by reason of the respondent selling the returned goods.
Clause 13.3 of the Print Copy Plan Variation (the "PCPV") between Sinclair Recruitment and the respondent said:
"13.3 You agree that on a termination under this clause 13 our loss is that of a financier which has purchased the goods for the purposes of this Agreement, that we are not in the business of renting out goods that our only obligation in respect of mitigating our loss is to make reasonable attempts to sell the Goods."
That clause suggests the respondent owed a contractual obligation to make reasonable attempts to sell the goods the subject of the PCPV and, inferentially, offset any sale proceeds against the claimed amount. In addition to that contractual obligation there may exist the general law obligation on innocent parties to a terminated contract to mitigate their loss.
Whether the goods have been sold we do not know, although Mr Clarke's affidavit sworn 3 November 2021 suggests they have not.
The respondent has not commenced proceedings against the appellant for her indebtedness under the guarantee, and so any defences she may have in relation to quantum, such as mitigation, have not been identified or determined.
All we can say on the evidence before us is that, in light of cl 13.3 and in the absence of any proceedings having been brought by the respondent against the appellant in which the quantum of its claim has been determined, we do not know what the amount in dispute on the appeal truly was.
In those circumstances we are unable to determine whether the amount (truly) in dispute was greater than $30,000. He who asserts must prove, and thus the onus lay on the respondent to prove that fact and the respondent has not done so.
The respondent did not advance any alternative argument that special circumstances existed which would warrant an award of costs, and so we need not consider that possibility.
As the matters above are dispositive of the application we need not consider the appellant's additional submissions.
[4]
Orders
It follows from the above that we dismiss the respondent's application for costs.
We make the following order per s 60 of the Civil and Administrative Tribunal Act 2013 (NSW):
1. Each party is to pay the party's own costs of the appeal.
[5]
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
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Decision last updated: 11 May 2022