Solicitors:
Pwtlegal for Robby Yong
File Number(s): AP 15/33772
Decision under appeal Court or tribunal: Civil and Administrative Tribunal
Jurisdiction: Consumer and Commercial Division
Citation: 2015] NSWCAT
Date of Decision: 14 April 2015
Before: Dr P J Briggs, Member
File Number(s): HB 13/11421 and HB 13/66466
[2]
RAESONS FOR DECISIon
In these proceedings the decision of the Appeal Panel was given on 18 January 2016. The appellant was successful. The orders of the Appeal Panel provided for the decisions of the Tribunal at first instance being remitted to a differently constituted Tribunal. In addition the costs orders that were made, were set aside.
The appellant now applies for his costs of the Appeal proceedings.
In accordance with Appeal Panel directions the appellant has filed and served written submissions in support of his costs application. The respondent has not filed submissions in response to those filed and served on behalf of the appellant.
However, the respondent's solicitor has written to the Tribunal stating that by reason of consent orders made on 2 May 2016 when the proceedings were remitted to the Consumer and Commercial Division of the Tribunal in accordance with the Appeal Panel's orders, a settlement of the costs of the Appeal was achieved. The relevant order that the respondent relies upon in the remitted proceedings was:
'4. By consent, each party is to bear their own costs of the proceedings.'
A further order was made:
'5 By consent this is an agreement reached in full and final settlement of proceedings HB 16/02948 and HB 16/02958 made on a commercial basis, without admission of liability'
File numbers HB 16/02948 and HB 16/02958, were the new file numbers issued by the Registry of the Consumer and Commercial Division to accommodate the remittal of the proceedings as ordered by the Appeal Panel.
The Act does not contain an over-arching definition of the word 'proceedings' such as to support a submission that order 4 as set out above, refers to and incorporates both the Appeal proceedings and the remitted proceedings in the Consumer and Commercial Division.
The Appeal Panel finds that order 4 does not relate to the Appeal Panel costs orders or to the appellant's application for the costs of the Appeal. Order 5 makes it clear that the orders made on 2 May 2016 relate only to proceedings HB 16/02948 and HB 16/02958. The respondent's submission that there has been a settlement of the costs in the Appeal is rejected.
Section 60 of the Civil and Administrative Tribunal Act 2013 (the 'Act') states in relation to costs:
'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.'
The appellant agrees that the Appeal Panel has the jurisdiction to award costs on appeal pursuant to s60 of the Act if it is satisfied that there are special circumstances warranting an award of costs. That was decided in Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120.
Counsel for the appellant has referred to the decision of the Appeal Panel in CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 where Principal Member Titterton stated after considering the relevant authorities:
'The authorities are consistent in stating that "special circumstances" are circumstances that are out of the ordinary; they do not have to be extraordinary or exceptional circumstances'
In Megerditchian v Kurmond Homes Pty Ltd the Appeal Panel decided the question of whether a costs order should be made by stating at [16]:
'In summary, we have decided that the appellant should pay the respondent's costs because the appeal relates to a commercial transaction involving a significant amount of money, a question of law was raised on appeal which justified representation by lawyers and the wider discretion to award costs at first instance, tends to favour an award of costs on appeal.'
In Alexander James Pty Ltd v Pozetu Pty Ltd (No. 2) [2016] NSWCATAP 75 [14 - 16] The Appeal Panel stated in connection with the issue of 'special circumstances':
'An assessment whether circumstances are "special" involves the exercise of a value judgement carried out by way of comparison between what is not "special", and what is special. There are no scientific means by which the former can be ascertained. The evaluative process is necessarily one of impression informed by the particular provisions of section 60, which by sec 60(3)(f) incorporates also a consideration of section 36(3) of the Act.
Having regard to the nature of the proceedings on appeal as we have described them, we are of the opinion that they intrinsically, and by reason of their complexity, both as to fact and law, justify them being characterised as special, warranting an award of costs in favour of the successful appellants. Counsel for the second appellant likened the proceedings to those commonly encountered in the Supreme Court of NSW. Their complexity was increased because of the position taken by the respondent, and it was necessary in the course of the appeal proceedings and for the purpose of determining them, to deal with circumstances in which an equitable lease would come into effect, the duty of fidelity and its application and the nature and effect of an option to renew a lease. These appeal proceedings could have only been prosecuted and defended appropriately by legal practitioners, and this attests to their complexity.
Relying on the provisions of section 60(3)(d), we conclude that there are special circumstances in the appeal proceedings warranting an award of costs in favour of the successful appellants against the respondent and we shall so order.'
The matters that the appellant relies upon to establish circumstances that are out of the ordinary and other matters under section 60(3)(g) of the Act which together warrant an order for costs in his favour are:
1. The failure of the Tribunal Member at first instance to provide adequate reasons in accordance with Tribunal Policy;
2. The failure of the Tribunal to properly discharge its statutory function and properly exercise its jurisdiction;
3. The extent and nature of the errors committed by the Tribunal at first instance described by the Appeal Panel to be 'so fundamental to the critical issues in dispute between the parties';
4. The purposive interpretations of the Home Building Act 1989 made by the Tribunal below which would have made it difficult for any person who was not a lawyer to have given meaningful submissions as to the appropriate interpretation of that legislation; and
5. The nature and complexity of the Appeal proceedings.
Having regard to the appellant's submissions, the Appeal Panel accepts that for the purposes of section 60 of the Act 'special circumstances' are to be understood as circumstances that are out of the ordinary.
The Appeal proceedings were as submitted by the appellant, complex, involving 21 Grounds of Appeal. The appellant succeeded on effectively 16 of its Grounds of Appeal.
The Appeal Panel accepts the matters referred to above as submitted by the appellant were circumstances which are out of the ordinary. In addition the Appeal Panel is satisfied that it was necessary for the Appeal to be placed in the hands of legal representatives and that the issues involved in the Appeal were without doubt very complex as referred to in section 60(3)(d) of the Act. As a result the Appeal Panel is satisfied that there are 'special circumstances' which warrant an order for costs in favour of the Appellant against the respondent.
The order is that the respondent must pay the appellant's costs of the Appeal, such costs if not agreed to be assessed on a party/party basis pursuant to the provisions of the Legal Profession Uniform Law Application Act 2014.
[3]
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
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Decision last updated: 17 June 2016