Thomas v Fleet Serve Pty Ltd t/as Pennant Hills Auto Trader

NCAT Appeal Panel|2020-10-13|Before: Blake AM

Introduction

On 12 August 2020, we made the following decision and gave oral reasons for this decision in this appeal: "(1) Extension of time is granted for the appellant to lodge an appeal to 3 June 2020. (2) Leave to appeal is refused. (3) In the event the parties do not agree about an order of costs of the appeal and the respondent seeks the costs of the appeal: (a) the respondent is to provide submissions by 19 August 2020; (b) the appellant is to provide submissions by 28 August 2020; (c) the respondent is to provide any submissions in reply by 3 September 2020. (4) If no application for costs is made by 19 August 2020, the Appeal Panel will make an order that the appellant pay the respondent's costs of the appeal."
The respondent is applying for an order that the appellant pays its costs of the appeal.
The parties provided the following written submissions: 1. the respondent's submissions dated 19 August 2020; 2. the appellant's submissions received on 3 September 2020; 3. the respondent's submissions dated 9 September 2020; 4. the appellant's submissions received on 9 September 2020.
We have decided to order that the appellant pay the respondent's costs of the appeal.

The issues

In determining the application of the respondent the following issues arise for determination: 1. whether an order should be made dispensing with a hearing; 2. whether an order for costs should be made in favour of the respondent.

NCAT Act

Part 4 Division 1 (ss 35-38) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) contains introductory provisions relating to the practice and procedure of the Tribunal. Section 35 deals with the application of Part 4, and relevantly provides: 35 Application of Part Each of the provisions of this Part is subject to enabling legislation and the procedural rules.
Part 4 Division 4 (ss 49-55) deals with the conduct of proceedings. Section 50 deals with the circumstances when hearings are required, and relevantly provides: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except - … (c) if the Tribunal makes an order under this section dispensing with a hearing, or … (2) 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. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first - (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
Part 4 Division 5 (ss 56-63) deals with the determination of issues and proceedings. Section 60 deals with costs, and relevantly provides: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. … (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.

NCAT Rules

Part 9 (cll 37-40) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) deals with the determination of proceedings. Rule 38 deals with costs in the Consumer and Commercial Division of the Tribunal, and relevantly 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 - … (b) the amount claimed or in dispute in the proceedings is more than $30,000.
Rule 38A deals with costs in internal appeals, and 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 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 submissions of the respondent

The respondent submits that it does not require a further hearing and given the extent of appearances to date a hearing of the application by oral submissions should be dispensed with.
The respondent makes the following submissions in support of its application for costs: 1. the amount claimed in the proceedings was more than $30,000; 2. while the usual order in relation to costs in the Tribunal contained in s 60(1) of the NCAT Act dictates that, unless special circumstances are established, each party pays their own costs, the application of the section is modified by r 38 of the NCAT Rules, which enables the Tribunal to award costs in the absence of special circumstances if the amount claimed or in dispute is more than $30,000; 3. the starting point in exercising the discretion under r 38 of the NCAT Rules is that a successful party should be entitled to an order for costs in its favour; 4. the appeal had no merit and it is appropriate that the appellant pay its costs.

The submissions of the appellant

The appellant submits that the respondent's application for costs can be dealt with on the papers.
The appellant makes the following submissions in opposition to the respondent's application for costs: 1. he purchased the subject motor vehicle on 17 January 2019. Immediately after realising he had been misled about the subject motor vehicle he contacted Fair Trading NSW. He spent months dealing with Fair Trading NSW before having the matter referred by Fair Trading NSW to the Tribunal for determination. He then proceeded to litigate the matter in the Tribunal without legal assistance up until December 2019 when leave for legal representation was granted. The matter was finally heard on 28 April 2020 where he lost. He then chose to appeal the decision of the Tribunal; 2. the history of the proceedings would show that he had a genuine and reasonable belief that he was in fact misled about the sale of the subject motor vehicle; 3. there was a genuine basis for the appeal, being that the decision of the Tribunal was against the weight of evidence; 4. although r 38 of the NCAT Rules displaces the requirement, the Tribunal should consider whether any special circumstances exist to warrant making an order for costs in favour of the respondent; 5. he did not conduct the proceedings in a way that unnecessarily disadvantaged the respondent, and did not unreasonably prolong the time taken to complete the proceedings. He submits that he had a claim which had a tenable basis in fact and law and the proceedings were not frivolous or vexatious or otherwise misconceived or lacking in substance; 6. it is in the interests of justice that both parties bear their own costs and the application be dismissed.

Whether an order should be made dispensing with a hearing

We are satisfied that the issues for determination in relation to the costs of the appeal can be adequately determined in the absence of the parties by considering their written submissions. Accordingly, we have decided pursuant to s 50(2) of the NCAT Act to make an order dispensing with a hearing in relation to the costs of the appeal.

Whether an order for costs should be made in favour of the respondent

In the proceedings at first instance the appellant relevantly applied for an order for a refund of $82,000.00 being the purchase price of the subject motor vehicle, or alternatively for an order that the respondent pay him $42,691.82 being the difference between the purchase price of the subject motor vehicle and its true value. In these circumstances, we are satisfied that the "amount claimed or in dispute" was greater than $30,000 and so, having regard to s 35 of the NCAT Act, r 38(2)(b) of the NCAT Rules applied to the proceedings.
In the appeal the appellant relevantly applied for the same orders as In the proceedings at first instance. The relevant amount to consider in relation to the respondent's application for costs is the amount in dispute on the appeal: Allen v Tricare (Hastings) Ltd [2017] NSWCATAP 25 at [57]. In these circumstances, we are satisfied that the "amount claimed or in dispute" on the appeal is greater than $30,000 and so, having regard to s 35 of the NCAT Act and r 38A(1)(c) of the NCAT Rules, r 38A(2) applies to this appeal.
The general principles concerning the awarding of costs under r 38 of the NCAT Rules were considered by the Appeal Panel in Rekrut and Scott v Champion Homes Sales Pty Ltd; Champion Homes Sales Pty Ltd v Rekrut and Scott [2018] NSWCATAP 97 at [21]-[23]: "21 Generally, the exercise of an unfettered power to award costs involves costs "following the event" unless there are factors which militate against the successful party being awarded all of the party's costs - Oshlack v Richmond River Council (1998) 193 CLR 72 at [67] and [69]; [1998] HCA 11. 22 Generally the "event" refers to the event of the claim or the appeal, as the case may be, and may be understood as referring to the practical result of a particular claim or appeal - Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15]. 23 Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed - Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 (Bostik) at [38].
Having regard to these principles, we are satisfied that the appellant should be ordered to pay the respondent's costs of the appeal, including the costs of this application. There is no warrant for making an order other than that costs should follow the event.

Orders

We make the following orders: 1. an order that a hearing is dispensed with in relation to the costs of the appeal; 2. an order that the appellant is to pay the respondent's costs of the appeal as agreed or assessed on the basis set out in the legal costs legislation (as defined in s 3A of the Legal Profession Uniform Law Application Act 2014 (NSW)).

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: 13 October 2020

At a glance

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Judgment (10 paragraphs)

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Legislation Cited (3)

Cases Cited (6)