Mikhail v JJ Built This Pty Ltd (No 2) [2021] NSWCATAP 213

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mikhail v JJ Built This Pty Ltd (No 2) [2021] NSWCATAP 213 Hearing dates: On the papers Date of orders: 14 July 2021 Decision date: 14 July 2021 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member J McAteer, Senior Member Decision: (1) A hearing on costs is dispensed with. (2) Each party is to pay his and its own costs of the appeal. Catchwords: COSTS – no question of principal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 60 Civil and Administrative Tribunal Rules 2014 (NSW), r 38 Cases Cited: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 Thompson v Chapman [2016] NSWCATAP 6 Texts Cited: None cited Category: Costs Parties: Guiguis Mikhail (Appellant) JJ Built This Pty Ltd (Respondent) Representation: Solicitors: Appellant (Self Represented) SKM Lawyers (Respondent) File Number(s): 2021/00061990 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 22 January 2021 Before: D G Charles, Senior Member File Number(s): HB 20/23978; HB 20/309824

REASONS FOR DECISION 1. In a decision dated 31 May 2021 in these proceedings (Mikhail v JJ Built This Pty Ltd [2021] NSWCATAP 159) we ordered the appeal brought by the appellant from the decision of the Tribunal in proceedings HB 20/23978 be dismissed, and the appeal brought by the appellant against the decision of the Tribunal in proceedings HB 20/309824 be upheld. Those two proceedings were heard together by the Tribunal and a single set of reasons given. 2. In our decision we included directions for the filing of any application for, and submissions on, costs. 3. An application for costs of the appeal has been made by the respondent and submissions in support of that application were filed by the respondent and dated 17 May 2021, whilst our decision was reserved and before it was published. No submissions in opposition to that application have since been received from the appellant. Nor has any application for costs been received from the appellant. 4. This decision concerns the respondent's application for costs and assumes familiarity with our decision in the substantive appeals. 5. We are satisfied that we should make an order dispensing with a hearing on the costs issues as we are satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions provided. 6. The respondent correctly submitted that s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) provides that each party to proceedings in the Tribunal is to pay the party's own costs, but the Tribunal (which includes the Appeal Panel) may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. 7. The respondent also correctly submitted that r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) provides that despite s 60 of the NCAT Act, the Tribunal may award costs in proceedings to which r 38 applies even in the absence of special circumstances warranting such an award if: 1. 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 NCAT Act in relation to the proceedings, or 2. the amount claimed or in dispute in the proceedings is more than $30,000. 1. The respondent did not say whether, in its submission, r 38 applied in this case. 2. We shall briefly describe the respondent's submissions. Their content should be understood in light of the fact they were made before we gave our decision. No further submissions were filed by the respondent and so we need to consider those that were filed. 3. The respondent submitted that the appellant's grounds of appeal were ambiguous. It submitted that it appeared that the appellant sought to advance at least two grounds on appeal, the first being an issue relating to a deposit paid and the second being the alleged abandonment of the contract by the respondent. The respondent submitted that the appellant had clearly not discharged his onus of proving either an error as to law or fact. 4. The respondent submitted that the appellant had failed to meet the test in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. What test was not identified, but we assume the respondent meant that the appellant had failed to establish an error of law. 5. The respondent submitted that the appeals were frivolous and vexatious. How that was so was not explained. 6. The respondent submitted that the appellant had conducted the proceedings in a way that unnecessarily disadvantaged the respondent by the incurring of further legal costs and delaying the respondent's entitlement to enforce the original orders obtained from the Tribunal. Other than bringing the appeals, which was the appellant's right, the respondent did not identify in what way the appellant was said to have conducted the proceedings in a way that unnecessarily disadvantaged the respondent. 7. The respondent submitted that in its original decision the Tribunal found that the appellant had failed to discharge his burden of proof. It submitted that the evidence relied upon by the appellant was largely improbable considering the objective factual circumstances and was deficient and incapable of supporting the allegations made by him. The respondent submitted that that position had not changed in the appeal.