In the principal decision in this appeal, delivered on 2 January 2019, the Appeal Panel refused Mr Singh leave to appeal against a decision of Deputy President Westgarth by which he lifted an interim order which had been made in favour of the appellant on 23 January 2018.
The orders of 2 January 2019 provided that if the respondents sought the costs of the appeal they should file written submissions within 7 days after publication of the reasons.
The respondents have filed written submissions seeking an order that the appellant pay the respondents' costs of the appeal.
The appellant filed submissions in response opposing the making of a costs order.
As recorded in the principal decision, the parties agreed at the hearing that any application for costs may be dealt with on the papers and without a further hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Accordingly we make an order pursuant to s 50(2) dispensing with the requirement for a hearing.
Section 60 of the NCAT Act provides:
60 Costs
(1) Each party to proceedings in the Tribunal is to pay the party's own costs.
(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.
(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to 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) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,
(f) whether a party has refused or failed to comply with the duty imposed by section 36 (3),
(g) any other matter that the Tribunal considers relevant.
(4) If costs are to be awarded by the Tribunal, the Tribunal may:
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.
(5) In this section:
costs includes:
(a) the costs of, or incidental to, proceedings in the Tribunal, and
(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
Rules 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) modify the operation of s 60 in relation to certain proceedings and appeals from proceedings in the Consumer and Commercial Division. Those rules provide:
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.
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 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 respondents submit that rules 38A and 38(2)(b) are enlivened in these proceedings. The respondents rely upon Singh v Fobupu Pty Ltd [2018] NSWCATAP 127, a decision of an Appeal Panel in relation to an earlier interlocutory appeal in the appellant's application for interim orders (COM 17/53291), in which the Appeal Panel concluded that rules 38 and 38A were applicable to an interlocutory appeal in the interim order proceedings.
In that decision the Appeal Panel stated:
22 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.
23 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".
24 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.
…
27 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.
28 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"
29 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.
30 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 appellant submitted that rule 38 is not applicable in this case as "there is no monetary value attached to an order uplifting a stay".
The respondents included with their submissions a copy of Points of Claim filed by the appellant in proceedings COM 17/53291. Those Points of Claim indicate that the appellant sought to recover the sum of $85,000 "demanded by the respondent as a condition of declining to lock out the applicants in 2010 and allowing the lease and tenancy to continue its term". Accordingly the amount in issue in the first instance proceedings exceeds $30,000 and rule 38A(2) requires that we apply the "first instance costs provisions", that is "s 60 as relevantly modified by r 38(2)" (Allen v Tricare Hastings Ltd [2017] NSWCATAP 25 at [23]), when deciding whether to award costs in relation to the appeal. Rule 38(2)(b) provides that we may award costs "even in the absence of special circumstances" if the amount "claimed or in dispute in the proceedings" exceeds $30,000.
We note that the Appeal Panel in Allen v Tricare Hastings Ltd stated at [57]:
57… it appears to us that in applying r 38(2)(b):
The determinative factor is the amount in dispute in each appeal, not the amount in dispute in the proceedings at first instance;
The phrase "in dispute" is to be construed as meaning truly in dispute or at issue or, inversely, not unrealistically in dispute;
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;
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.
That passage makes it clear that, in order that rule 38(2)(b) apply to appeal proceedings it is necessary that the amount in dispute in the appeal itself exceed $30,000. We note that it would be an unusual case where an interlocutory order the subject of an interlocutory appeal could be shown to be likely to affect the wealth of the appealing party by more than $30,000.
We do not consider it necessary in these proceedings to seek to resolve the question whether rule 38(2)(b) is applicable or to reconcile the decision of the Appeal Panel in Singh v Fobupu with paragraph [57] of the decision in Allen v Tricare Hastings.
The reason we do not consider it necessary to resolve the question whether rule 38(2)(b) is applicable to this appeal is that we are satisfied that there are in any event "special circumstances warranting an award of costs" within the meaning of s 60(2) of the NCAT Act.
In support of their submission that there were special circumstances, the respondents referred to previous decisions in which the Tribunal had found special circumstances:
1. where an applicant at no time had a maintainable claim before the Tribunal (Yarraford Pastoral Co Pty Ltd v Wise [2015] NSWCATCD 41);
2. where there was a complete lack of evidence to prove claims that were advanced (Ocana v Roche Constructions Pty Ltd [2014] NSWCATCD 231); and
3. where proceedings had been misconceived and/or lacking in substance (Blair v The Owners Strata Plan No 71656 [2016] NSWCATCD 8).
The respondents further rely upon the facts:
1. that the appellant had not sought written reasons for the decision the subject of the appeal, and had not provided a transcript of the oral reasons, which made it impossible for the Appeal Panel to be persuaded that the decision under appeal was even arguably wrong;
2. that, as noted in the principal decision at [10], the appellant's notice of appeal failed to identify with any clarity the grounds upon which the appellant sought leave to appeal; and
3. that the appellant had failed to provide any written submissions in accordance with the Appeal Panel's directions.
In response, the appellant's submissions largely sought to rehearse the issues the subject of the principal proceedings, that is the retail leases application COM 17/53297 and the interim order application COM 17/53291. The appellant did not directly address the matters relied upon by the respondents.
We accept the respondents' submission that the appellant's manifest failure to identify any sensible basis for his appeal and his failure to provide written submissions in support of his appeal do constitute special circumstances.
We consider that the factors referred to in s 60(3)(e) and (f) of the NCAT Act are present in this case in that the appeal was misconceived and lacking in substance and the appellant failed to comply with the duty imposed by s 36(3) of the NCAT Act which, inter alia, requires parties to comply with directions of the Tribunal.
Therefore, regardless of whether rule 38(2)(b) is applicable to this appeal, we consider it appropriate that the appellant be ordered to pay the respondents' costs of the appeal.
[2]
Orders
Our orders are:
1. The hearing is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.
2. The appellant is to pay the respondents' costs of the appeal as agreed or assessed.
[3]
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
[4]
Amendments
22 February 2019 - Coversheet decision numbering corrected.
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Decision last updated: 22 February 2019