Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Panayiotou v Prieston [2020] NSWCATAP 174 Hearing dates: On the papers Date of orders: 21 August 2020 Decision date: 21 August 2020 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member J McAteer, Senior Member Decision: (1) An oral hearing on costs is dispensed with. (2) The appellant is to pay the respondents' costs of the appeal as agreed or assessed in accordance with s 60(4)(b) of the NCAT Act. Catchwords: COSTS – party/party – general rule that costs follow the event – proceedings dismissed – no exception to the general rule established Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 50(2), 55, 60 Civil and Administrative Tribunal Rules 2014 (NSW), r 38 Cases Cited: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 Rekrut and Scott v Champion Homes Sales Pty Ltd; Champion Homes Sales Pty Ltd v Rekrut and Scott [2018] NSWCATAP 97 Texts Cited: None cited Category: Costs Parties: Patty Panayiotou (Appellant) Anna Maria Prieston (First Respondent) Nik Prieston (Second Respondent) Representation: Solicitors: Appellant (Self Represented) Argus Lawyers (Respondents) File Number(s): AP 20/10208 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 27 February 2020 Before: D Charles, Senior Member File Number(s): COM 16/15203, COM 16/24056 and COM 16/24062 REASONS FOR DECISION 1. The appellant was a tenant of commercial premises owned by the respondents. 2. The appellant commenced the three proceedings from which this appeal is brought seeking damages arising out of alleged water damage to certain of her goods which were in the leased premises. 3. In separate proceedings commenced in the Tribunal the respondents sought, and subsequently obtained, consent orders for the surrender of possession of the leased premises and for the payment by the appellant of rent arrears. 4. The Tribunal heard the three proceedings commenced by the appellant. They were heard together. The Tribunal dismissed the three proceedings for the reason that the appellant had not provided sufficient evidence to establish any claim for damages. 5. That decision was given on 27 February 2017. 6. Almost 3 years later, on 28 February 2020, the appellant filed her Notice of Appeal from that decision. 7. On 3 June 2020, the Appeal Panel dismissed the appellant's appeal pursuant to s 55 of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act"). That provision provides that an appeal may be dismissed due to the non-appearance of an appellant. We note that no application was made by the appellant under s 55 (2) to reinstate the appeal. 8. The respondents now seek an order for costs in relation to the dismissed appeal. 9. On 18 June 2020, the Appeal Panel directed the respondents to file and serve submissions in support of a costs order within 14 days, the appellant to file and serve submissions in response within 14 days thereafter, and the parties were directed, in those submissions, to address whether the Appeal Panel should dispense with an oral hearing of the costs application and for that application to be decided on the papers. 10. The respondents filed submissions pursuant to the order mentioned in the paragraph above on 30 June 2020. In further submissions filed on 1 July 2020 the respondents submitted that a hearing in person, on the telephone or by video in relation to the costs application should be dispensed with and the issue decided on the papers. The respondents referred to the present difficulties with COVID-19, and that the appellant had a hearing disability which may present difficulties for her to conduct a hearing by telephone or video hearing. 11. No submissions have been received from the appellant. 12. The Appeal Panel 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 – s 50(2) of the NCAT Act. 13. Before doing so the Appeal Panel must first afford the parties with an opportunity to make submissions about the proposed order and must take any such submissions into account. 14. The opportunity to make submissions on the order dispensing with a hearing was given on 18 June 2020, and we have taken the respondents' submissions into account. No submissions have been received from the appellant. 15. We are satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions provided to the Appeal Panel. 16. As we have mentioned above, the appeal has been dismissed. 17. The total of the damage the appellant claimed she had suffered in the proceedings at first instance was $744,299, but as the Tribunal's then jurisdictional limit was $400,000 (it is now $750,000) she was limited to that amount. 18. Her appeal was based on, in substance, an allegation that the Tribunal at first instance was biased, an allegation completely unsupported by any evidence or submissions. Nevertheless, the point to observe is that had that allegation been made good, the appellant would have been able to claim damages up to $400,000. This sum was therefore the sum in dispute on the appeal. 19. The amount "claimed or in dispute" on the appeal determines what costs principles apply. 20. That question is answered by Rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW). Rule 38 says: 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. 1. The amount "claimed or in dispute" on the appeal is $400,000, thus being greater than the $30,000 mentioned in r 38(2)(b). 2. In Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 the Appeal Panel explained that r 38 displaces the provisions of s 60 of the NCAT Act in proceedings commenced in the Consumer and Commercial Division of the Tribunal, which is where the present proceedings were commenced. Accordingly, the requirement in s 60 for "special circumstances" to exist before an award for costs can be made does not apply. 3. Appeals are "proceedings" for the purposes of r 38 and are regarded as separate to the proceedings determined at first instance – Allen at [41]. 4. In Rekrut and Scott v Champion Homes Sales Pty Ltd; Champion Homes Sales Pty Ltd v Rekrut and Scott [2018] NSWCATAP 97 the Appeal Panel said, in reference to the principles applying to the present case: "[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]. 1. The practical result of the dismissal of the appeal on 3 June 2020 was that the appellant failed on her appeal, and the respondents succeeded. 2. There are no factors which the appellant has identified, nor that we have identified from the material before us, which militate against the successful respondents being awarded their costs. 3. In those circumstances costs should follow the event. Orders 1. We make the following orders: 1. An oral hearing on costs is dispensed with. 2. The appellant is to pay the respondents' costs of the appeal as agreed or assessed in accordance with s 60(4)(b) of the NCAT Act. ********** 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 21 August 2020 - Case title 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: 21 August 2020