Taphouse Investments Pty Limited v Independent Liquor & Gaming Authority

REASONS FOR DECISION

1. Following our decision in Taphouse Investments Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWCATAP 171 to dismiss the appeal because it was a moot appeal, the respondent has applied for an order that the appellant pay its costs of the appeal. These are our reasons for decision in respect of that costs application. They should be read in conjunction with our reasons for decision in the substantive appeal. That decision was issued and published on 26 June 2023. The appeal was heard on 17 March 2023 (with further submissions received on 22 March 2023).
2. The appeal was lodged on 29 August 2022. It was an appeal from an administrative review decision of the Tribunal, issued on 1 August 2022, in respect of a refusal by the respondent, in May 2022, to grant an extended trading authorisation (ETA) to the appellant, then the licensee of a hotel in south-western Sydney.
3. The appellant was the licensee at material times, including when the appeal was lodged, but ceased to be the licensee on 8 November 2022, well before the hearing of the appeal, following the completion of a sale of the hotel business and transfer of the licence to a new licensee.
4. In our decision dismissing the appeal we applied the general rule against entertaining proceedings which do not resolve any current legal controversy between the parties and otherwise have no practical consequences for the parties.
5. In written submissions from the respondent, dated 10 July 2023, it applied for its costs of the appeal on the basis that the requirement for "special circumstances" in s 60 (2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) was established. That section, relevantly, 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. …..