Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners SP 80881 v Gregg (No 2) [2022] NSWCATAP 227 Hearing dates: On the papers Date of orders: 12 July 2022 Decision date: 12 July 2022 Jurisdiction: Appeal Panel Before: R C Titterton OAM, Senior Member D Goldstein, Senior Member Decision: 1 A hearing be dispensed with. 2 The appellant is to pay the respondent's costs as agreed or as assessed. Catchwords: APPEALS – costs – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) – s 60 Civil and Administrative Tribunal Rules 2014 – rr 38, 38A Cases Cited: Dunn & Pilcher Constructions Pty Ltd v Woodos Australia Pty Ltd (No 2) [2022] NSWCATAP 45 Mison v Bennett Property (NSW) Pty Ltd [2018] NSWCATAP 138 The Owners - SP 80881 v Gregg [2022] NSWCATAP 172 Texts Cited: None cited Category: Principal judgment Parties: The Owners SP 80881 (Appellant) Stephen Gregg (Respondent) Representation: Solicitors: Bannermans Lawyers (Appellant) Sachs Gerace Lawyers (Respondent) File Number(s): 2022/0038298 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2021] NSWCATCD Date of Decision: 12 January 2022 Before: M Eftimiou, Member File Number(s): SC 21/33241 REASONS FOR DECISION Introduction 1. The Appeal Panel published its reasons for decision in this matter on 25 May 2022: The Owners - SP 80881 v Gregg [2022] NSWCATAP 172 (Decision). 2. For the reasons set out in the Decision, the Appeal Panel ordered that: 1. to the extent that the appeal raised a question of law, the appeal was dismissed; 2. to the extent that the appeal raised any other error, leave to appeal was refused. 1. In its reasons the Appeal Panel relevantly stated at [87]: As the appellant has been unsuccessful, we propose to order it to pay the respondent's costs as agreed or as assessed. If either party seeks some other order, they may file submissions within 14 days, and the other party may reply within a further 14 days. We propose to consider those submissions on the papers and without a hearing. If either party opposes that course, they should address that issue in their submissions. 1. No submissions were received from either party. Preliminary 1. Section 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except-- (a) in proceedings for the granting of leave for an external or internal appeal, or (b) in connection with the use of any resolution processes in proceedings, or (c) if the Tribunal makes an order under this section dispensing with a hearing, or (d) in such other circumstances as may be prescribed by the procedural rules. (2) The Tribunal 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. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first-- (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. (5) This section does not prevent the Tribunal from holding a hearing even if it is not required. 1. As noted, the parties were offered the opportunity to make submissions about costs being determined without a hearing. Neither party did so. 2. As we are satisfied that the issue of costs 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, we will make an order pursuant to s 50(1)(c) of the NCAT Act dispensing with a hearing. Consideration 1. As we noted in the Decision, r 38A of the Civil and Administrative Tribunal Rules 2014 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. 1. The relevant "first instance costs provisions" appear in r 38, which states: 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. As the Appeal Panel stated recently in Dunn & Pilcher Constructions Pty Ltd v Woodos Australia Pty Ltd (No 2) [2022] NSWCATAP 45 7. Under s 60 of the Civil & Administrative Tribunal Act 2013 (NSW) (the NCAT Act) each party to proceedings in the Tribunal is to pay the party's own costs. However, under s 60(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. The Civil & Administrative Tribunal Rules 2014 (NSW) (the Rules) provide in rule 38 that despite s 60 the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if the amount claimed or in dispute is more than $30,000. Rule 38A provides in respect of an appeal that where rule 38 applied at first instance the provisions of rule 38 apply in respect of the appeal. 8. In short, the position is (and this is acknowledged by both parties) that in the circumstances of this matter the Tribunal may award costs of the appeal even in the absence of special circumstances if the amount claimed or in dispute exceeded $30,000. Nevertheless, there is no rule in the Tribunal that costs follow the event. 1. As the Appeal Panel further stated in another recent decision Mison v Bennett Property (NSW) Pty Ltd [2018] NSWCATAP 138: 20. Rule 38(2)(b) gives us a wide discretion to make an order for costs. It does not specify the factors we must take into account in exercising the discretion, although the discretion must be exercised judicially: see, for example, Ruddock v Vadarlis [2001] FCA 1865 at [9]. 21. In Thompson v Chapman [2016] NSWCATAP 6, the Appeal Panel discussed the exercise of the discretion, stating at [69[ to [72]: 69. The starting point in exercising such discretion is that the "usual order for costs" is that a successful party should be entitled to an order for costs in their favour: see Latoudis v Casey [1990] 170 CLR 534 per Mason CJ at 554 and Oshlack v Richmond River Council per McHugh J at 97. 70. The reason for such an order is that it is appropriate for the party who incurred costs caused by the other party in litigation to be reimbursed. Further, an award of costs is by way of an indemnity to the successful party and not as punishment of the unsuccessful party: see Latoudis v Casey per Mason CJ at 543 and McHugh J at 567 and in Oshlack v Richmond River Council per Brennan CJ at 75. 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 Gummo 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 Gummo[w] JJ at 41 – 44. 1. As noted, in the Decision we foreshadowed a costs decision whereby the appellant, which had been unsuccessful on appeal, should pay the respondent's costs as agreed or as assessed. Neither party argued against that course, and we are satisfied that an order for costs in favour of the respondent is consistent with applicable legal principles in that it would provide compensation to him for the expense he has been put to in defending the appeal: by way of analogy, see Mison at [24]. 2. In summary, there is no reason why the usual rule (where r 38 applies) in relation to costs should be displaced either in whole or in part. The discretion to make an order for costs should be exercised in favour of the respondent. Orders 1. The Appeal Panel orders: 1. A hearing be dispensed with. 2. The appellant is to pay the respondent's costs 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: 12 July 2022