Targeted Properties Pty Ltd v Look Up Technologies Pty Ltd

Introduction

This decision concerns whether there should be an order that the Appellant pay the Respondent's costs of the appeal.
On 7 October 2022 we published our decision with respect to the substantive appeal. The appeal concerned whether the Tribunal had jurisdiction to determine the dispute between the parties and involved a consideration of the provisions of the Retail Leases Act 1994 (NSW). We held that the Tribunal did have jurisdiction. Accordingly, the appeal was dismissed.
In dismissing the appeal, we made directions for the Respondent to file and serve submissions with respect to costs of the appeal. We also made a direction for the Appellant to have leave to respond with its submissions. The directions also included a direction that the parties' submissions on cost of the appeal should include submissions as to whether the Tribunal may decide costs on the papers by making an order dispensing with a further hearing.

Consideration

The general rule in the Tribunal is that each party pays its own costs but the Tribunal has a discretion to make an order for costs if there are special circumstances warranting an award for costs. The relevant provisions concerning costs are contained in s 60 of the Civil & Administrative Tribunal Act, 2013 (NSW) (the NCAT Act). Its terms are: 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 & Administrative Tribunal Rules 2014 (the Rules) make additional provisions with respect to costs incurred in proceedings in the Consumer & Commercial Division of the Tribunal. Rules 38 and 38A are as follows: 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.
As discussed above, the appeal involved an appeal from a decision at first instance that the premises were a "retail shop" and the proceedings involved a "retail shop lease" under the Retail Leases Act 1994 (NSW) to which the Tribunal had jurisdiction.
The submissions of the Respondent do not seek to address s 60 and in particular there is no submission that there are special circumstances warranting an award for costs. Nor do the submissions of the Respondent seek to engage rules 38 and 38A. The Respondent has addressed none of the principles set out in the Appeal Panel decision in Hanave Pty Ltd v Wine Nomad Pty Ltd: Wine Nomad Pty Ltd v Hanave Pty Ltd (No 2) [2022] NSWCATAP 361 as to whether rules 38 and 38A apply; or s 60 (1)-(3) of the Act apply.
Rather, the Respondent's submissions seek to invoke the "usual rule" of costs following the event so that a successful party obtains a costs order in its favour, unless there are appropriate grounds to depart from that outcome. There is no such rule in the Tribunal and the Appeal Panel unless the provisions of rules 38 and 38A apply, and therefore in our view that submission is, respectfully, misconceived.
As the Respondent is the party seeking a costs order in its favour and is legally represented, it bears the responsibility of explaining in its submissions why rules 38 and 38A apply; or if they do not apply, why there are one or more "special circumstances" under ss 60 (3) and (3) of the Act to justify a costs order in favour of the respondent. The applicable principles regarding the operation of "special circumstances" under s 60 of the Act are well established (see, for example, The Owners-Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 at [5]-[15])
It would be to deny the Appellant procedural fairness if we were to independently engage in a consideration of whether there are special circumstances or whether rules 38 and 38A are applicable to the proceedings.
In the circumstances, the appropriate course is to dismiss the application for an order for costs with the result that there will be no order concerning costs of the appeal.
In coming to the determination described above, we have considered clause 7 of schedule 4 of the NCAT Act. That clause provides that in proceedings concerning the Retail Leases Act, a party is entitled to be represented by an Australian lawyer or other agent without requiring leave of the Tribunal. That provision only concerns representation. It does not, in our view, alter or modify the provisions of s 60 or rules 38 and 38A insofar as costs are concerned.
Finally, the question arises as to whether it is appropriate to decide the question of costs on the papers. Section 50 of the NCAT Act provides that generally a hearing is required for proceedings in the Tribunal. However, that position is modified by s 50(2) which provides that the Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. An order dispensing with the hearing may not be made unless the Tribunal has first afforded the parties an opportunity to make submissions about the proposed order and taken those submissions into account (see s 50(3)).
Neither party made any submissions concerning whether there should be an oral hearing on costs or whether we may make an order dispensing with an oral hearing and determining the costs application on the papers. Nevertheless, we are satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions and other material provided.

At a glance

Court

Decision date

Source

Judgment (5 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (2)