Singh v Fobupu Pty Ltd

Introduction

On 18 April 2018 the Appeal Panel dismissed an application by Mr Singh (applicant) by which the applicant sought leave to appeal an interlocutory decision of the Tribunal made on 6 March 2018. That decision was to make directions for the preparation for hearing of application COM17/53291 filed in the Consumer and Commercial Division.
The dispute to which the directions related concerned a retail lease of a property at Kingswood. The applicant for leave to appeal is the applicant in the proceedings at first instance. The respondents are the respondents to the application.
The Appeal Panel gave Ex Tempore reasons for decision to dismiss the application for leave to appeal. A request for written reasons was subsequently made.
In dismissing the application, the Appeal Panel made directions for the respondents to file and serve submissions on their costs application by 19 April 2018. Directions were also made for the applicant to file submissions in reply. The directions required the parties to file submissions as to whether or not an order should be made pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act), dispensing with a hearing
The respondents' submissions in support of the costs application were forwarded to the Tribunal by letter dated 19 April 2018. The applicant filed submissions in reply by email dated 23 April 2018. In turn, the respondents filed submissions in reply by letter dated 24 April 2018.

Consideration

Rule 38A of the Rules is relevant to determining the present application for costs. This rule provides: 38A Costs in internal appeals (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 of 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.
In the present case, the relevant procedural rule which might apply to the proceedings at first instance is r 38. That rule provides: 38 Costs in Consumer and Commercial Division of the Tribunal (1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (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: (a) the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under clause 10 (2) of Schedule 4 to the Act in relation to the proceedings, or (b) the amount claimed or in dispute in the proceedings is more than $30,000.
Where that rule applies, there is a general discretion to award costs, the usual position being that a successful party is entitled to their costs: see eg Oshlack, Latoudis, Bonita and Thompson v Chapman [2016] NSWCATAP 6.
The applicant says the rule does not apply because the application to the Appeal Panel was an application to seek leave to appeal an interlocutory decision. In these circumstances, so the applicant said, r 38 is not engaged because it does not operate in connection with interlocutory decisions or appeals from such decisions.
In my opinion, this submission has no substance. The terms of r 38 are clear. That is, "the Tribunal may award costs in proceedings (emphasis added) in which this rule applies even in the absence of special circumstances warranting such an award for costs if … the amount claimed or in dispute in the proceedings (emphasis added) is more than $30,000".
There is no dichotomy between those parts of the proceedings which relate to interlocutory applications and orders which might be made during the course of the proceedings and those parts of the proceedings that might finally dispose of a party's rights. If the Legislature had intended that the power to award costs in the proceedings was limited to those circumstances where final orders are made, it would have said so. There is no logical reason to limit the power given to the Tribunal under r 38 in the manner suggested by the applicant.
Further, there is no question that, despite section 60, the rules may make provision for matters of "practice and procedure" which are different to those in the NCAT Act. In this regard s 35 of the NCAT Act provides: Each of the provisions of this Part is subject to enabling legislation and the procedural rules.
Section 60 is part of Part 4 Practice and Procedure of the NCAT Act to which s 35 applies. Consequently, r 38(2) applies despite s 60 if the amount claimed or in issue is more than $30,000: see Bonita at [41] and following.
In my view, there is no question that the amount claimed or in dispute in the proceedings at first instance is more than $30,000. This is made clear from the applicant's submissions in the present application for costs, some of which have been set out above. Even though the amounts claimed in the original application are described as "TBA", which I understand to mean "to be advised", there can be no doubt that the amount in dispute in the proceedings is more than $30,000 whether or not an express claim has been made in the original application. In this regard the comments of the Appeal Panel in Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [48] and following are relevant, namely that the wealth of the parties could change by more than $30,000.
It follows from s 38A that because the "first instance costs provisions … differed from those set out in s 60 of the NCAT Act … the Appeal Panel for an internal appeal … must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal"
An internal appeal is one to which s 32 of the NCAT Act applies. In the present case that is an appeal in respect of a decision by the Tribunal in proceedings for a general decision. An internal appeal includes an application for leave to appeal, whether brought under s 80(2)(a) or (b), that is whether an internal appeal is made in respect of an interlocutory decision or any other kind of decision not involving a question of law.
The respondents were successful in relation to the application for leave to appeal. Having regard to the authorities to which they refer, there is a discretion to award costs. The usual rule is that the successful party should be entitled to recover their costs. There is no need to establish special circumstances to be entitled to such an award.
The applicant says no order for costs should be made or, alternatively, costs should be costs in the cause. However, no significant reasons are offered as to why this course should be adopted.
Whether or not the applicant is ultimately successful in his claim is not a reason why the respondents should be denied the costs in respect of an unsuccessful attempt to seek leave to appeal. The applicant sought leave to appeal the directions made on 6 March 2018 despite the fact that those orders had been varied by the time the application for leave to appeal was heard. He did so despite the respondents offering to allow him to withdraw the appeal on or before 13 April 2018. These matters support an order against him to compensate the successful parties for costs incurred.
None of the matters put forward by the applicant justify a departure from the usual rule.
On the other hand, the respondent suggested at one point in their submissions that a special order for costs should be made, namely on an indemnity basis. In my opinion, particularly as the applicant was self-represented and having regard to the lateness of the offer, the circumstances do not justify the making of a special order for costs.
It follows that an order should be made in favour of the respondents that the applicant pay the respondents' costs of the application for leave to appeal, as agreed or assessed, on an ordinary basis.

At a glance

Court

Decision date

Source

Judgment (6 paragraphs)

Parties

Cases Cited (5)

Cited By (8)