Zeait v Singh

NCAT Appeal Panel|2018-06-28|Before: Dr J

Appellant: G Adelstein, Elmassian Lawyers Respondent: R Kent, Kent Lawyers File Number(s): AP 18/01142 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 7 December 2017 Before: C Paull, Senior Member File Number(s): HB 15/07518 and HB 15/32783

Introduction

In Zeait v Singh [2018] NSWCATAP 109, we dismissed an appeal from a decision of the Consumer and Commercial Division of the Tribunal of 7 December 2017. The appeal concerned the costs of applications HB 15/07518 (Mr Singh's application) and HB 15/32783 (Mr Zeait's application). The Tribunal had ordered Mr Zeait to pay Mr Singh's costs in both applications.
These reasons concern the costs of Mr Zeait's appeal. For the following reasons, Mr Zeait, who was unsuccessful in his appeal, must pay Mr Singh's costs.
We note that both parties were directed to file submissions on this issue. Submissions were received from Mr Singh on 24 May 2018, but no submissions were ever received from Mr Zeait, notwithstanding the Registry reminding him that his submissions were overdue.
In our primary decision, we indicated that we thought that the costs decision could be determined without a hearing, but directed the parties to provide submissions if they thought otherwise. As no party provided any submissions opposing our decision being made without a hearing, and as we are satisfied that the issues for determination can be adequately determined in the absence of the parties by considering their written submissions, we have directed that a hearing be dispensed with pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW).

Mr Singh's submission

Mr Singh's argument can be stated simply. He submits that:

Mr Zeait was unsuccessful in his appeal;
r 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules) applies to the appeal;
by reason of r 38A(2), the Appeal Panel must apply the first instance costs provisions (defined in r 38A(1)), in relation to the costs of the appeal;
the first instance costs rules are contained in r 38;
as the costs claimed or in dispute in the appeal were more than $30,000, while the award of costs is discretionary, the "usual rule" is that costs follow the event: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [67].

Mr Singh submits that r 38A "clearly" applies. While he acknowledges that the "starting point" is that a successful party is entitled to an order for costs (see Thompson v Chapman [2016] NSWCATAP 6 at [69]), he submits that there are no factors present in the appeal which would cause the Appeal Panel depart from this position.
In summary, we agree with Mr Singh. Rule 38A does apply to this appeal. The amount in dispute did involve more than $30,000, as that expression is explained in Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 (TriCare), and we see no reason why the usual costs rule should not apply; that is, the unsuccessful party (here the unsuccessful appellant Mr Zeait) should pay Mr Singh's costs.

Relevant legislative provisions and Rules

The general provision for costs is s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). That section provides that each party to proceedings is to pay the party's own costs (s 60(1)), and that 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 (s 60(2)).
However, as we noted in the appeal decision, r 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.
Rule 38A in turn 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.

Application of Rules

Rule 38A applies to the present appeal because: 1. it was lodged after 1 January 2016; and 2. the first instance cost provisions differ from those set out in s 60 in that: 1. the proceedings at first instance were brought under the provisions of the Home Building Act 1989 (NSW); 2. Schedule 4, cl 3 of the NCAT Act allocates such proceedings to the Consumer and Commercial Division of the Tribunal; 3. therefore, in those proceedings "the first instance costs provisions" included r 38 of the NCAT Rules, which modifies the operation of s 60.
Accordingly, in the present appeal, r 38A(2) requires the Appeal Panel to apply the first instance costs provisions, which is s 60 of the NCAT Act as relevantly modified by r 38(2), when deciding whether to award costs of the appeals: TriCare at [23].
Rule 38(2) allows the Appeal Panel to award costs in the absence of special circumstances warranting such an award if either of the requirements in r 38(2)(a) or (b) is satisfied, that is:

if 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 (r 38(2)(a));
or the amount claimed or in dispute in the proceedings is more than $30,000 (r 38(2)(b)).

The requirement in r 38(2)(a) has not been satisfied since the Appeal Panel has not made an order under cl 10(2) of Sch 4.
Mr Singh relies that r 38(2)(b). He submits that the issue in dispute in the appeal, namely the costs of the proceedings at first instance, had a realistic prospect of changing the wealth of the appealing party (Mr Zeait) by more than $30,000: TriCare at [56] - [57]. In this respect, he relies on the affidavit of his solicitor, Mr Rodney Kent, sworn 24 May 2018. In summary, Mr Kent says the total costs claimed in the proceedings in relation to just his appearances at the Tribunal is $24,239.60 (see pars [11] - [12]). However, he states that that amount does not include any of the costs for the preparation and drafting of witness statements, submissions and the general conduct of proceedings over a two and a half year period. Accordingly, he submits that Mr Singh's costs in relation to the proceedings will well exceed $30,000: par [8].
In the event that we are not satisfied that the costs do exceed $30,000, Mr Singh submits that the Appeal Panel should reserve its decision pending assessment.

Conclusion

We agree that r 38A applies to this appeal. The appeal itself concerned the application of the first instance costs provisions. We decided that the amount claimed or in dispute in the proceedings was more than $30,000, that r 38 of the NCAT Rules applied, and that there was no error in the Tribunal's decision to order Mr Zeait to pay Mr Singh's costs of the proceedings before it.
On the basis of Mr Kent's evidence we are satisfied that the dispute the subject of the appeal, that is the costs of the substantive appeal, did involve an amount of more than $30,000. To use the language of TriCare, we are satisfied that the issue in dispute in the appeal, namely the costs of the proceedings, had a realistic prospect of changing the wealth of the appealing party Mr Zeait by more than $30,000.
We also accept Mr Singh's submission that there is no reason to depart from the usual rule, that he as the successful party should be awarded his costs. In the primary decision at par [39] we noted that there is a general discretion as to whether or not costs should be awarded: Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [83]. We also referred to Thompson v Chapman [2016] NSWCATAP 6. In that decision the Appeal Panel stated at [71] and [72]: "71. Where there is a general discretion for costs there is no absolute rule that, absent disentitling conduct, a successful party is to be compensated by the unsuccessful party nor is there any rule that a successful party might not be ordered to bear the costs of an unsuccessful party: see Oshlack v Richmond River Council per Gaudron and Gummow JJ at 88 and Kirby J at 121 - 123. 72. The factors to be considered in awarding costs in a particular case are not to be confined as to do so would constrain the general discretion. However it is clear from the authorities that factors that might influence whether the usual order for costs should apply and, if so, to what extent include: (1) Whether, by reason of the relative success of the parties on different issues and the time taken to determine those that an order for costs based on issues should be made: see for example Bostick Australia Pty Ltd v Liddiard (No 2) [2009] NSWSCA 304; and (2) Whether, by reason of the nature of the proceedings the usual rule should otherwise be displaced in whole or in part: see Oshlack v Richmond River Council per Gaudron and Gummow JJ at 41 - 44."
We see no reason why the usual rule should be displaced in whole or in part.
Accordingly, we order that Mr Zeait to pay Mr Singh's costs of the appeal.

Order 1. The appellant is to pay the respondent's costs of the appeal, as agreed or as assessed.

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: 28 June 2018

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