Abdelmessiah v Lifestyle Marketing Pty Limited [2023] NSWCATAP 152

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Abdelmessiah v Lifestyle Marketing Pty Limited [2023] NSWCATAP 152 Hearing dates: 27 April 2023 Date of orders: 8 June 2023 Decision date: 08 June 2023 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member M Deane, Senior Member Decision: 1. The appeal is allowed, in part. 2. Order 4 of the orders made by the Tribunal on 20 January 2023 is set aside and, in substitution thereof, order that the appellant is to pay the first and second respondents' costs of the proceedings at first instance, save for their costs in relation to the challenge to the jurisdiction of the Tribunal, such costs to be agreed or assessed. 3. Within 10 days of the publication of these reasons, any party that seeks an order in relation to the costs of the appeal is to lodge in the Appeal Registry and serve written submissions in respect of such an application, including submissions concerning whether a hearing in relation to the costs of the appeal should be dispensed with, and written submissions in reply are to be lodged and served within 7 days thereafter. 4. Order 1 of the orders made by the Tribunal on 20 January 2023 is varied by deleting the word "respondent" and inserting the word "applicant". Catchwords: COSTS – applicant/appellant ordered to pay respondents costs - consumer law claim for misleading and deceptive conduct – whether Rule 38 (2) of the Civil and Administrative Tribunal Rules 2014 (NSW) applied – claim in excess of $30,000 until part way through hearing of the merits – whether respondents or applicant was the successful party – whether applicant achieved a degree of success – whether exercise of discretion as to costs miscarried – re-exercise of discretion by the Appeal Panel – order as to costs modified. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Fair Trading Act 1987 (NSW) Cases Cited: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 Bondi Builders Pty Ltd v Dennis [2022] NSWCATAP 317 Bonita v Shen [2016] NSWCATAP 159 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Carlson v ARA Engine Reconditioning Pty Ltd (No 2) [2020] NSWCATAP 39 House v The King [1936] HCA 40; (1936) 55 CLR 499 Quest Rose Hill Pty Ltd v White [2010] NSWSC 1190 The Owners-Strata Plan No. 92666 v Melkonian Constructions Pty Limited [2023] NSWCATCD (issued on 23 January 2023) Thornton v Desire Constructions Pty Ltd [2020] NSWCATAP 116 Category: Principal judgment Parties: Eva Abdelmessiah (Appellant) Lifestyle Marketing Pty Limited trading as RE/MAX Lifestyle Marketing (First Respondent) Universal Property Group Pty Ltd trading as The Bathla Group (Second Respondent) Representation: Counsel: JR Young (Appellant) B Anderson (First Respondent) I Chatterjee (Second Respondent)