Williams Street Convenience Store Pty Ltd v Kronheim

NCAT Appeal Panel|2020-06-02

resentation: Solicitors: Warehousing Pty Ltd trading as The Retail Leases Doctor (Agents) (Appellant) Rostron Carlyle Rojas Lawyers (Respondent) File Number(s): AP20/10109 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 30 January 2020 Before: G Sarginson, Senior Member File Number(s): COM 18/33757

Overview

The appellant leased retail premises from the respondent. In the proceedings below, the respondent, as landlord, brought a retail tenancy claim against the appellant seeking orders under s 72(1) of the Retail Leases Act 1994 (NSW) (RL Act) in the Consumer and Commercial Division of the Tribunal. The respondent claimed damages for restoration of the premises, rent arrears, consequential rent loss and payment of the whole of a security bond.

Notice of Appeal

The appellant filed an appeal in respect of the Costs Decision. No appeal was filed in respect of the Principal Decision. The appeal was filed in time.
In short, the appellant challenged both the Tribunal's "refusal to make an order … that the respondent … is not entitled to receive payment of the whole of the security bond E311900-9 with the NSW Small Business Commissioner" and the Tribunal's order that each party was to bear its own costs of and incidental to the proceedings.
The appellant sought the following orders: 1. A declaration that it was entitled to receive payment of the bond or, alternatively, that the respondent was not entitled to receive payment of the bond; 2. That an order for costs be made in favour of the appellant against the respondent in respect of the proceedings at first instance; and 3. That the respondent pays the appellant's cost of the appeal.
The grounds of appeal assert that the Tribunal erred in law: 1. In determining that the appellant's claim for the security bond was time barred under ss 71(2) or 71B of the RL Act. 2. In failing to exercise jurisdiction under ss 72(1)(f)(iv) or 72(2) of the RL Act to declare that the respondent is not entitled to the payment of the security bond. 3. In ruling that a director of the appellant cannot appear as an agent of the appellant. 4. In ruling that the usual costs order would be made only if there was some evidence that legal costs or disbursements were incurred. 5. In relying on the decision in Academy of Education Ltd v Dr Nirmal Taluja & Ors (No 2) [2011] NSWSC 880 (Taluja) but not then making the costs order made in Taluja and in failing to follow other prior relevant decisions. 6. In taking into account irrelevant considerations, failing to take into account relevant considerations and making factual errors.
The respondent filed a Reply to Appeal which can be summarised as follows.
In respect of the declaratory relief concerning the bond, the respondent said the claim was out of time and statute barred by reason of ss 71 and 71B of the RL Act, the lease having ended in 2011. The respondent also said that Ezy Mart "could make an application seeking the bond" and that "(r)eleasing the bond to the appellant would unfairly disadvantage Ezy Mart which was found to have a retail lease with the respondent". In this regard reference was made to the Principal Reasons at [132]. Otherwise, the respondent says that it is open to it to pursue claims against other entities (presumably a reference to Ezy Mart). Finally, the respondent says the declaratory relief is not an ancillary order and that the application made was an attempt by the appellant to "reopen the case".
In relation to the dismissal of the application for costs, the respondent said that rule 38 provided a discretion in connection with an award of costs. Having identified various authorities, the respondent said there was no error of principle and no error in the Tribunal exercising its discretion.
The appellant has a right of appeal on questions of law, otherwise leave of the Appeal Panel is required: see s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Where leave is required, leave may only be granted if the appellants establish they may have suffered a substantial miscarriage of justice.
The appellant submitted that its grounds of appeal raise questions of law, such that leave is not required. The respondent submitted that leave is required and should not be granted because there has been no substantial miscarriage of justice. For the reasons set out in this decision, the Appeal Panel considers that the appeal raises questions of law in respect of the security bond and costs and therefore leave is not required.

Hearing of the Appeal

The parties provided written submissions in support of their respective positions. Oral submissions were made at the hearing of the appeal on 2 June 2020.
We were also provided with a document entitled Notice of Representation. Wentworth Warehousing Pty Ltd trading as "The Retail Leases Doctor" was referred to as the agent. The document was dated 26 February 2020 and related to representation in the appeal by an agent who is not a lawyer. The Notice also referred to "Haney Soltan, Lay Advocate" as the person to whom "Attention" should be drawn, presumably in respect of correspondence
We note that despite s 45 of the NCAT Act, representation by an agent is permitted pursuant to Sch 4 cl 7(b) of the NCAT Act. We will return to this issue below as it is relevant to the issue of costs.
For present purposed we note Mr Soltan, apparently as an employee or director of Wentworth Warehousing Pty Ltd, appeared as a lay advocate for the appellant in this appeal.
The respondent was represented at the hearing by a solicitor, Mr Kllogjri.

Consideration

The issues on appeal may be summarised as follows: 1. Whether the Tribunal erred in failing to make an order declaring who is entitled to the security bond. 2. Whether the Tribunal erred in its decision in respect of costs by ordering that each party was to bear its own costs.

Appellant's submissions

The appellant submitted that the issue of the security bond was clearly one of the issues for determination in the proceedings below as the respondent's retail tenancy claim sought an order that it was entitled to all of the security bond pursuant to s 72(1)(f)(iv) of the RL Act.
The appellant submitted that s 72(1)(f)(iv) of the RL Act permits the Tribunal to make an order that a person is, or is not, entitled to the security bond and such an order should be made by the Appeal Panel.
In its written and oral submissions the appellant argued that the Appeal Panel was able to make the order in respect of the security bond under s 72(1)(f)(iv) of the RL Act as an: 1. "ancillary order" for the purposes of s 72(2) of the RL Act. 2. "interlocutory decision" or an "ancillary decision" for the purposes of s Section 29(2) of the NCAT Act.

Decision on security bond

Section 72 of the RL Act provides: 72 Powers of Tribunal relating to retail tenancy claims (1) In proceedings for a retail tenancy claim lodged with the Tribunal under this Part, the Tribunal is empowered to make any one or more of the following orders that it considers appropriate - … (f) an order - … (iii) declaring the rights and liabilities of the parties under law, whether any consequential relief is or could be claimed or not, or (iv) declaring that a party is or is not entitled to receive payment of the whole or a part of a security bond, … (2) The Tribunal may make such ancillary orders as it considers necessary for the purpose of enabling an order under this section to have full effect.
Orders declaring rights under s 72(1)(f) are substantive orders. As such, they were orders that the Tribunal could have made as an alternative to the order dismissing the application.
The appellant did not, at the time the substantive proceedings were heard and determined, file an application or make submissions seeking declaratory relief or other orders in connection with the security bond. Rather, the appellant first sought substantive relief when it made its costs application, that is after the substantive proceedings were determined.
To the extent the appellant sought to do so in its costs application, the Tribunal was correct to conclude that this was an attempt of the respondent to reopen its case after the Principal Decision had been made.
Alternatively, the appellant submitted the orders were ancillary orders which the Tribunal was entitled to make under s 72 of the RL Act or s 29(2)(a) of the NCAT Act.
We reject this submission.
Section 72(2) of the RL Act, which permits ancillary orders, makes clear that an order under that section is "for the purpose of enabling an order under [s71(1)(f)] to have full effect". Section 72(2) does not give to the Tribunal power to grant the substantive relief found in the subs 72(1).
Similarly, s 29(2)(a) of the NCAT Act permits an ancillary order which is defined as an order "that is preliminary to, or consequential on, a decision determining the proceedings": see definition of "ancillary decision" s 4 NCAT Act and Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 at [33] and following, particularly [39]. Again, this section does not permit the grant of substantive relief of a type found in subs 72(1) of the RL Act.
No appeal was lodged in respect of the Principal Decision. Such an appeal is now out of time and no extension was sought.
It follows that this ground of appeal fails.
We should briefly add that this challenge would also fail on another basis.
The issue resolved by the Tribunal in the Principal Decision was whether the appellant was the lessee of the premises after 2011. The Tribunal found it was not. The Tribunal did not resolve the issue of whether, by reason of what had occurred after that time, the bond became available as security under a subsequent lease with Ezy Mart and the respondent. Ezy Mart was not a party to the proceedings at first instance and a claim was not formulated on this basis. Whether or not such rights exist or are now enforceable was not a matter to be dealt with as part of an application for costs as permitted by the directions made in the Principal Decision. Consequently, it is not a matter which should now be dealt with in this appeal.

Appellant's submissions

The appellant seeks an order that the respondent pay the appellant's costs in the proceedings below as agreed or as assessed. In support of its position, the appellant's submission to the Appeal Panel may be summarised as follows: 1. At [58] of the Costs Decision, the Tribunal stated that it would be inappropriate for the Tribunal to "put the [respondent] to the time and expense of a costs assessment where no basis has been established that the costs sought by the [appellant] fall within the definitions of "legal costs" and "disbursements". The appellant submits that this is not a correct basis on which to determine that the respondent should not be entitled to costs as the successful party. The appellant referred us to Northern Territory v Sangare [2019] HCA 25 at [27] where the High Court stated that it was erroneous for the Court below to decline to make an order for costs in favour of the successful party on the basis of a perception that the award would be futile. 2. At [56] of the Costs Decision, the Tribunal stated that "Mr Soltan seeks to charge for his time in preparation and appearances". The appellant submits that this is irrelevant to consideration of whether a costs order should be made in favour of the appellant as the successful party. 3. There was evidence before the Tribunal that was not considered in the proceedings below that is relevant to the capacity in which Mr Soltan appeared for the appellant. 4. In Coshott v Spencer and Ors; Coshott v Spencer and Ors [2019] HCATrans 183 (Coshott) a solicitor who was the respondent in proceedings engaged an incorporated legal practice (of which he was a director and solicitor to represent him). The High Court dismissed the applicant's argument that the costs should not have been allowed.
The appellant referred the Appeal Panel to certain other documents (including a purported contract between Wentworth Warehousing Pty Ltd and the appellant in which Mr Soltan was to provide advocacy services to the appellant for the proceedings). These documents were not in evidence in the proceedings below. During the appeal hearing the appellant did not press for the documents to be introduced as fresh evidence. Rather, the appellant sought an order for costs to be assessed so that such documentation could be considered by the costs assessor as relevant.

Respondent's submissions

The respondent submitted that the order that each party bears its own costs is appropriate. Its submissions may be summarised as follows: 1. The decision to award costs is discretionary. In circumstances where the appellant failed to demonstrate that it had incurred recoverable costs, the Tribunal correctly ordered that no costs be awarded in favour of the appellant. 2. It is established at law that a director of a company cannot appear as both director and agent. The respondent referred the Appeal Panel to [10] of the First Decision in which respondent submits Mr Soltan confirmed that he appeared in his capacity as a director of the appellant. 3. The Tribunal correctly applied Lee v Lee's Air Farming Ltd [1961] AC 12 in clearly distinguishing it on the basis that there was no separate agreement between the appellant and the director. 4. There is "no evidence or substantive argument" that the Tribunal acted on any wrong principle, took into account irrelevant considerations or failed to take into account relevant considerations.

Decision on Costs

There is no dispute r 38(2)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) applied to the proceedings at first instance. In this regards the parties agreed that the amount claimed or in dispute exceeded $30,000.
Under r 38(2)(b) there is a general discretion to award costs despite the section 60 of the NCAT Act. In Thompson v Chapman [2016] NSCATAP 6 (Thompson), when dealing with r 38(2)(b), the Appeal Panel said at [69]: "The starting point in exercising such a discretion is that the "usual order for costs" [applies and] that a successful party should be entitled to an order for costs in their favour."
The Appeal Panel in Thompson referred to the decisions of the High Court in Latoudis v Casey [1990] 170 CLR; 534 HCA 59 and Oshlack v Richmond River Council (1998) 193 CLR 72. In Latoudis McHugh J said at 567: "An order for costs indemnifies the successful party in litigious proceedings in respect of liability for professional fees and out-of-pocket expenses reasonably incurred in connection with the litigation: Kelly v. Noumenon Pty Ltd (1988) 47 SASR 182, at p 184. The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory. Thus, in civil proceedings an order may, and usually will, be made even though the unsuccessful party has nearly succeeded or has acted reasonably in commencing the proceedings."
While there is a general discretion to award costs, there is no absolute rule that the successful party must receive their costs (Thompson at [71]-[72]). Where an award for costs has been made in the exercise of such a discretion the circumstances in which the Appeal Panel can intervene are, usually, limited to where the exercise of the discretion has miscarried.
In Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [75] the Appeal Panel stated that "an appellate tribunal should not lightly interfere with the primary tribunal's decision" and referred to the relevant principles in House v R [1936] HCA 40; (1936) 55 CLR 499, per Dixon, Evatt and McTiernan JJ at 504-5, as follows: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."
In the present case, the discretion is said to have miscarried because the Tribunal found that the respondent, that was not legally represented, had not proved it had incurred any costs.
The respondent said the Tribunal was correct to reach this conclusion. However, the respondent did not refer us to any authority to support his submission that the appellant was required to produce evidence of costs it had incurred.
There is no general obligation upon the Tribunal to obtain evidence of costs for the purpose of making a ruling as to which party should pay costs and what order should be made. Parties may provide evidence of the amount of costs which they claim when an application for costs is made to the Tribunal. In such a case, the Tribunal may fix the costs or make an order for assessment.
However, provision of such evidence is not a precondition to the award of costs and the failure to provide evidence would not provide a reason to reject an application for costs.
An exception might be where the failure arose despite a direction that evidence of the costs incurred be provided to the Tribunal. In such a case, the Tribunal might be entitled to infer no costs had been incurred and decline to make such an order because it would have no utility.
In the present case the directions concerning any application for costs were in the following terms: 2. Any costs application, including written submissions, is to be made in writing filed with the Tribunal and served on the other party by 14 days from the date of this decision. 3. If such a costs application is made the other party is to file and serve written submissions in reply by 14 days thereafter. 4. The submissions of the parties are to state whether they consent to the issue of costs being determined on the papers. 5. Subject to the submissions of the parties, any costs application will be determined on the papers and without further oral hearing pursuant to s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW).
None of those directions required a party making a costs application to provide evidence of the costs incurred.
It follows from the above that we are satisfied the discretion miscarried and the order dismissing the application for costs should be set aside.
Subject to two considerations, we should re-exercise the discretion as permitted by s 81 of the NCAT Act and make an order for costs in favour of the appellant in respect of the proceedings at first instance in which it was successful.
The complication in this case arises from the role of Mr Soltan and the company, Wentworth Warehousing Pty Ltd and the fact that a claim appears to be made to recover the costs of Mr Soltan appearing before the Tribunal the hearing at first instance. Also, it is unclear whether a claim is made for the costs of preparation for hearing and/ or disbursements.
At [46] and [47] of the Costs Decision, the Tribunal remarked that a number of previous decisions of the Tribunal and Appeal Panel had made costs orders in favour of successful parties where an agent represented the party in retail lease proceedings pursuant to cl 7(b) of Sch 4 to the NCAT Act, but went on to state that these decisions were instances where the agent was not also a director of the company and the agent was at 'arms' length' from the relevant party. At [53] of the Costs Decision, the Tribunal concluded that a director "cannot appear on behalf of the company both as an agent of the company at the same time, because it is a fiction to regard the director as being able to charge the company for his or her time incurred in representing the company in legal proceedings when the person is appearing in their capacity as a director". At [53], the Tribunal stated that such circumstances are "fundamentally different to situations where … a person is both a director of a company and separately has a contract of employment with the company … ".
It does not appear that the Tribunal had the benefit of any submissions concerning the High Court's recent decision in Coshott in which a solicitor (who was the respondent in the relevant proceeding) engaged an incorporated legal practice (of which the solicitor was a director) to provide services in the proceeding. However, as we have decided the Tribunal erred in the exercise of its discretion, it is appropriate we consider this decision in deciding whether a costs order should now be made.
Coshott involved the High Court considering an application by Mr Coshott to review the taxation of costs following an award in favour of the respondent. The application was dealt with by Keane J. A transcript of his decision was provided to us. In dismissing the application, his Honour said at page 6 of that transcript: "It may be said that it is quite artificial that an individual may render services for a corporation, of which he or she is a sole shareholder and director, at the same time as the corporation provides those services for the same individual as a client of the corporation. It may fairly be said that this "metaphysical bifurcation", as it was described by Bray CJ in R v Goodall, is as unattractive as it is unnatural. But as Bray CJ also recognised, it is "the logical consequence of Salomon's Case", in which the House of Lords affirmed that the legal personality of a corporation is separate from that of the individual who controls the corporation. And so an individual who is the sole director and shareholder of a corporation may contract with that corporation for the provision of services by it so as to give rise to an obligation to pay for those services." [citations omitted]
On the other hand, when considering costs in Taluja, Ball J said of the position of a company that is a party to proceedings, represented by its director at the hearing: 9 As to the question whether the second defendant is entitled to recover costs at all, in Cachia v Hanes (1994) 179 CLR 403 at 410-15, the High Court made it clear that a litigant in person is not entitled to be compensated by a costs order for the time he or she has spent in connection with court proceedings. That is because an order for costs is intended to operate as reimbursement for the actual costs and expenses incurred by the litigant and not as recompense for the time spent in connection with the proceedings. However, a litigant in person is no less entitled to be reimbursed for costs and expenses incurred in court proceedings than is a party who is represented: see Cachia v Isaacs (NSWCA, 23 March 1989, unreported). Consequently, to the extent that a litigant in person incurs legal costs in connection with court proceedings - such as legal costs for assistance in preparing affidavits or submissions or in answering a subpoena or notice to produce - those costs are recoverable. In addition, a litigant in person may be entitled to recover for time spent in connection with court proceedings where costs are recoverable on that basis in accordance with the rules of court. For example, if a litigant in person is served with a subpoena, then normally the costs incurred in complying with that subpoena, including recompense for time spent in searching for documents, would be recoverable: UCPR r 33.11. 10 There is no reason why different principles should operate in this case. Ms Ihram was a director of the second defendant and it is in that capacity she sought to appear. Her position was equivalent to the position of a litigant in person. 11 In addition, there is no reason why a costs order would not normally be made in favour of the second defendant against the first defendant in this case. The second defendant was joined in the proceedings because of the position taken by the first defendant that the agreement for lease and the assignment of the agreement for lease from the second defendant to the plaintiff was invalid. It was proper for the plaintiff to join the second defendant in those circumstances. Given that, it would be appropriate to make a Sanderson order in favour of the second defendant: see Sanderson v Blyth Theatre Co [1903] 2 KB 533. In addition, the first defendant filed a cross-claim against the second defendant. The plaintiff succeeded and the first defendant's cross-claim failed. In those circumstances, the first defendant should pay the second defendant's costs of the cross-claim. 12 As I have said, the second defendant is not entitled to recover costs represented by the time Ms Ihram spent as a director of the second defendant in defending the claim. But equally, there is no reason why the second defendant should not recover costs incurred by it simply because it was not represented at the hearing by a legal practitioner. If the parties cannot agree on the amount of those costs, then that is a matter for assessment.
From these cases we conclude that costs of a director appearing for a company are not generally recoverable although the company may recover other costs it incurs even if not legally represented. However, the fact the party to proceedings is a director of a company providing legal services does not preclude the party from recovering the costs paid to that company from an opponent where an order for costs is made.
In the present case, the Tribunal recorded in the Principal Reasons that Mr Soltan was a director of the appellant and appeared in that capacity at the original hearing: at [10]. Prima facie, this would suggest the principle in Taluja would exclude recovery of costs associated with the time spent by Mr Soltan in actually appearing before the Tribunal as its director.
On the other hand, the appellant identified a letter dated 21 October 2018 from Wentworth Warehousing Pty Ltd (trading as The Retail Leases Doctor) stating that The Retail Leases Doctor acts for the appellant. For reasons not relevant to this decision, the letter invites the respondent to withdraw its retail tenancy claim. The letter is signed by Mr Soltan as "Lay Advocate". The appellant submitted that the letter was in evidence before the Tribunal on the costs application. The respondent did not dispute that this was the case.
This letter provides some evidence as to the capacity in which Mr Soltan appeared before the Tribunal. It might also support a claim for the costs of preparation of the case for hearing, even if the costs of an agent appearing at the hearing were not recoverable because Mr Soltan was appearing in his capacity as a director.
In our view these facts raise questions as to whether there was a relevant retainer and, if so, who was it with, what were the terms of the retainer and what services were actually provided. These are matters properly left for resolution through the costs assessment process and not by this Appeal Panel in appeal.
The second matter to consider is whether any costs paid or payable by the appellant to Mr Soltan and/or Wentworth Warehousing Pty Ltd are, in any event, recoverable.
In its submissions to the Tribunal, appellant relied on the decision of The Law Society of New South Wales and Stephen Gary Spring and Another [2007] NSWSC 1273 (Spring) as authority for the proposition that it was entitled to recover costs paid to its agent. The Tribunal referred to these submission at [57] of the Costs Reason.
In Spring, Barr J concluded that the then applicable Legal Profession Act 2004 (NSW) (Repealed) (LP Act) provided an exception to the prohibition on a non lawyer charging for legal services where an agent appeared in retail lease disputes before the Administrative Decisions Tribunal. When considering the then permission given to an agent to appear in retail lease dispute before the Administrative Decisions Tribunal, his Honour said at [74]: 74 In my opinion the Law Society's submissions should not be accepted. S71 Administrative Decisions Tribunal Act means what it says. It is a statutory authority for a party in proceedings in the Tribunal to be represented for all purposes in the proceedings by an agent, including an agent who is not an Australian legal practitioner. S14(2) Legal Profession Act makes express exceptions for compliance with its requirements. S71 is such an exception. There is no conflict between the sections and no warrant for reading down the plain meaning of s71 and s77C Retail Leases Act.
Section 14(2) of the LP Act provided: 14 Prohibition on engaging in legal practice when not entitled (1) A person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner. Maximum penalty: 200 penalty units. (2) Subsection (1) does not apply to engaging in legal practice of the following kinds: (a) legal practice engaged in under the authority of a law of this jurisdiction or of the Commonwealth,
That is, the permission given under the then titled Administrative Decisions Tribunal Act 1997 (NSW) was an exception to the general prohibition in the LP Act.
Despite the decision in Spring, there is some doubt whether such an exemption now exists following the passing of the Legal Profession Uniform Law Application Act 2014 (NSW) and the adoption of the Legal Profession Uniform Law (NSW). This is because that legislation does not appear to contain a provision of like effect to s 14(2) of the LP Act.
However, again it is unnecessary to resolve this issue which can be dealt with through the assessment process.
Consequently, there is no reason why an order for costs should not be made in favour of the appellant in the proceedings at first instance. It follows that we will set aside the order 2 made on 30 January 2020 in application COM 18/33757 and make an order for costs in its favour.

Costs of the appeal

Rule 38A requires us to apply r 38 in determining costs in this appeal.
Rule 38 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 - (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.
Prima facie, there is no amount claimed or in dispute, the issues in the appeal being whether an order declaring who is entitled to the bond and whether a costs order was to be made: see The Owners Corporation Strata Plan No. 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256. Consequently, s 60 of the NCAT Act is not displaced.
In such a case, special circumstances would need to be established. Prima facie there is nothing out of the ordinary in this appeal. Further, it seems to us that even if special circumstance could be established, having regard to the fact the appellant only succeeded on one of two issues, each party should pay their own costs in any event.
We will make a conditional order to this effect and allow the parties to file and serve evidence and submissions if they contend a different order should be made. Any submissions should deal with whether an order should be made dispensing with a hearing.

Orders

The Appeal Panel makes the following orders: 1. The appeal in respect of order 2 made 30 January 2020 is allowed, the order is set aside and in lieu thereof the following order is made: The applicant (Kronheim) is to pay the costs of the proceedings of the respondent (Williams Street Convenience Store Pty Ltd) such costs to be as agreed or assessed on an ordinary basis. 1. Save as provided above, leave to appeal is refused and the appeal is otherwise dismissed. 2. Subject to order 4, each party is to pay their own costs. 3. In the event either party contends an order for costs should be made in their favour, the following directions apply: 1. Within 14 days from the date of these orders, the applicant for costs (costs applicant) is to file and serve any evidence and submissions in support of that application Costs application), whereupon order 3 will cease to have effect. 2. Within 28 days from the date of these orders, the respondent to the costs application is to file and serve any evidence and submissions in reply. 3. Within 35 days from the date of these orders, the costs applicant is to file and serve any submissions in response. 4. The submissions must include any submissions about whether an order should be made under s 50(2) of the Civil and Administrative Tribunal Act 2013 dispensing with a hearing of the costs application.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

Amendments 22 December 2020 - Formatting & numbering corrected. 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

Amendments 22 December 2020 - Formatting & numbering corrected. 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: 22 December 2020

Administrative Decisions Tribunal Act 1997(NSW)

Legal Profession Act 2004(NSW)

(Repealed) Legal Profession Uniform Law Application Act 2014(NSW)

Retails Leases Act 1994(NSW)

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