Reasons for decision in this matter were published on 20 December 2018: Taylor v Joye [2018] NSWCATAP 309. For the reasons there stated, we decided to allow the appeal, hold a rehearing on the papers, and to dismiss the application.
At pars [50] and [51] we noted that the appellants had been unsuccessful, and gave directions as to submission on costs. We also sought the parties' views on whether the issue of costs could be determined on the papers and without a hearing. Submissions were subsequently received from all parties.
No party objects to the matter being heard on the papers. Accordingly, we direct that the matter be determined without a hearing: Civil and Administrative Tribunal Act 2013 (NSW), s 50(2).
For the following reasons we have decided to dismiss the respondent's application for costs.
[2]
Preliminary issue
We note at the outset that, in addition to the respondent seeking the costs of the appeal, he also seeks the costs of the matter under appeal, COM 17/42631. The application in relation to those costs is misconceived. Senior Member Boyce heard and determined the issue of those costs, finding that there were no special circumstances warranting an award of costs. The appellants are correct to submit that there was no appeal filed in relation to that decision.
While it is correct that we allowed the appeal, the result of the rehearing was the same outcome as found by Senior Member Boyce. While the respondent seeks to rely on Syed Ahmad Shoaib Ali Pty Ltd v Jandson Pty Ltd [2018] NSWCATAP 304, we accept the appellants' submission that that decision is distinguishable, in that in Syed the respondent had failed to ask for the costs below, but the Appeal Panel found that it was reasonably clear that the respondent had intended to claim costs at first instance in the event that its appeal was successful. That is not the position here, where an application for costs was made, and refused, at first instance.
It suffices to say that, in those circumstances, the costs of proceedings COM 17/42631 should remain where they have fallen, that is with each party paying their own costs.
We turn now to the issue of costs of the appeal.
[3]
Which costs rule applies?
The first issue to consider is whether or not this is a matter where the amount in dispute is more than $30,000.00.
The respondents contend that the amount in dispute in the Tribunal Proceedings is more than $30,000 within the meaning of r 38 in the NCAT Rules, as that rule was interpreted in Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25. In that decision, the Appeal Panel observed that:
the determinative factor was the amount in dispute in the appeal or the value of the matter at issue in the proceedings;
the inclusion of the words "or in dispute" after "the amount claimed" in r 38 indicates that amounts may be in dispute in proceedings even if there is not a specific claim for an order for payment of an amount in the proceedings; and
whether "the amount in dispute" in an appeal is more than $30,000 depends on whether there is a realistic prospect that in the appeal the wealth of the appellants would be changed by more than $30,000.00.
This issue was further considered by the Appeal Panel recently in The Owners Corporation Strata Plan No. 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256. There the Appeal Panel considered whether r 38(2)(b) applied in circumstances where no amount was claimed in the proceedings for more than $30,000. Rather, the order sought by the Owners Corporation was that the unit entitlements of the various Lots should be reallocated. As a preliminary matter, the Appeal Panel noted at [72] that Tricare was not determinative of the issue, as it was unnecessary for the Appeal Panel to resolve the issue of whether the expression "the amount claimed or in dispute in the proceedings" used in r 38(2)(b) included a reference to a right of possession valued at an amount in excess of $30,000, which might be lost by a tenant or occupant if an order for possession was made against them in favour of an applicant.
After referring to Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355, the Appeal Panel stated at [87] that the meaning of the rule needed to be considered:
in the context of the NCAT Act and the fact that r 38 operated as an exception to s 60 of the NCAT Act;
in light of the enabling legislation by which the Tribunal is given jurisdiction to hear and determine particular disputes.
The Appeal Panel further observed at [95] that:
where there is a claim for relief that may, as a consequence of that relief being granted, result in the loss of a property or other civil right to a value greater than $30,000, it could not be said that there are proceedings in which the amount claimed or the amount in dispute is greater than $30,000 within the meaning of the rule;
the fact that it was necessary to evaluate evidence about the value of particular property or determine other rights as part of determining whether there is an entitlement to relief does not mean "the amount claimed" or "the amount in dispute" in the proceedings is more than $30,000;
where the relief sought is not dependent on a finding that a particular amount is payable or not payable, it could not be said that "the amount claimed or in dispute in the proceedings is more than $30,000".
The Appeal Panel concluded at [99] that r 38(2)(b):
operates when "the amount claimed or in dispute" can be identified in the proceedings;
does not require an exercise in the valuation of the right being affected by the order sought in order to determine whether the costs rule applies or to engage in some collateral evaluative process;
does not operate because a party raises an issue in proceedings that might be capable of being assigned a monetary value or which might involve the assessment of value as part of determining the relief which is claimed.
The Appeal Panel's overall conclusion as to the application of r 38(2)(b) appear at pars [109], [110] and [111]. Relevantly for this appeal, the Appeal Panel stated at [111]:
Rule 38(2)(b) does not apply to proceedings:
(1) Where a claim for relief in the proceedings (not being a claim for an order to be paid or be relieved from paying a specific sum) may, as a consequence of that relief being granted, result in the loss of any property or other civil right to a value of more than $30,000; or
(2) Where there is a matter at issue amounting to or of a value of more than $30,000 but:
(a) no direct relief is sought and no order could be made in the proceedings requiring payment or relief from payment of an amount more than $30,000; or
(b) the relief sought does not depend on there being a finding that a specific amount of money is owed.
This was a matter where the claim for relief in the proceedings was that a notice of contribution in relation to a dividing fence be issued. The claim was not a claim for an order for money to be paid or an order be relieved from paying a specific sum, it was a claim where no direct relief was sought and no order could be made in the requiring payment or relief from payment of an amount more than $30,000, nor was it a claim where the relief sought depended on there being a finding that a specific amount of money is owed.
Accordingly, we do not accept the respondents' submission that it is entitled to an award of costs by reason of the application of r 38(2)(b).
[4]
Should costs be awarded on some other basis?
As Rule 38 is not applicable, the relevant costs rule appears in s 60 of the Civil and Administrative Tribunal Act 2013 (NSW). That section 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.
As the respondent has not made any submissions addressing s 60, the appellants submit that the application for costs must fail. We agree. It would be procedurally unfair to the appellants for the Appeal Panel to determine for itself whether or not there are special circumstances not having heard from the parties. In any event, we would have thought that it would have been difficult to establish special circumstances, as that expression has been discussed in cases such as Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 and Kurmond Homes Pty Ltd v Spiteri [2015] NSWCATAP 48.
[5]
Orders
1. A hearing is dispensed with.
2. The respondent's application for costs is dismissed.
[6]
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
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 15 January 2019