Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Layoun v Multiproperties Pty Ltd (No 2) [2023] NSWCATAP 223 Hearing dates: On the papers Date of orders: 11 August 2023 Decision date: 11 August 2023 Jurisdiction: Appeal Panel Before: S Thode, Principal Member D Robertson, Senior Member Decision: (1) Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) dispense with a hearing concerning whether the respondent should repay the appellant the moneys found not to have been owed. (2) Order the respondent Multiproperties Pty Ltd to pay to the appellant George Layoun, within 14 days of the date of publication of this decision, the sum of $20,948.20. Catchwords: APPEALS — Procedure – Orders on appeal – Restitution – Where judgment partially set aside on appeal has been paid prior to determination of the appeal – Possibility that costs order may be made against successful appellant on remittal of issue of costs of first instance proceedings is not sufficient reason to decline to make an order for restitution of the overpayment Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: None Cited Texts Cited: None Cited Category: Consequential orders Parties: George Layoun (Appellant) Multiproperties Pty Ltd (Respondent) Representation: Solicitors: Centurion Lawyers (Respondent) File Number(s): 2022/00314737 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 13 October 2022 Before: D Goldstein, Senior Member File Number(s): COM 21/05854; COM 21/23405 REASONS FOR DECISION 1. On 19 May 2023, the Appeal Panel made orders: 1. Declaring pursuant to s 72(f)(iv) of the Retail Leases Act 1994 (NSW) that Multiproperties Pty Ltd is entitled to payment of the sum of $7,816.16 from the bond lodged with the NSW Small Business Commissioner on 22 November 2015 and that that George Layoun is entitled to the balance of the bond; and 2. In the event that the respondent has received from the bond an amount exceeding $7,816.16 or the appellant has paid to the respondent any part of the amount ordered to be paid by the Tribunal, the parties are to file consent orders for repayment of those amounts by 23 May 2023 and the Appeal Panel will make an order without requiring the further appearance of the parties. 1. The Appeal Panel also remitted to the Consumer and Commercial Division the questions of costs arising in the first instance proceedings. 2. The Appeal Panel envisaged that a consent order concerning the repayment of monies to the appellant could be made without further need by the parties to appear. 3. The parties were unable to agree to a consent order. It emerged from communications from the parties that the appellant had paid the respondent the full amount of the judgment at first instance which was substantially reduced on appeal. The amount paid by the appellant, in excess of the amount found by the Appeal Panel to be owing by the appellant, was $20,948.20. 4. On 25 May 2023, the Appeal Panel made orders: "1. The respondent is to provide written submissions of no more than two pages in length why an order for $20,948.20 should not be made and to provide a copy of the submission to the Appeal Panel and the other side by 8 June 2023. 2. The appellant is to file and serve submissions in reply of no more than two pages in length, if any, to the Appeal Panel and the respondent by 15 June 2023. 3. The Appeal Panel will then decide if a hearing on the issue can be dispensed with and if the order can be made in chambers." 1. The respondent filed written submissions on 7 June 2023, submitting that the Appeal Panel should not order the respondent to repay the sum of $20,948.20 because: "There is a likelihood that the Consumer and Commercial Division will make an order for costs" 1. The respondent submitted that the appellant had wholly failed in his cross claim, which was not the subject of the appeal, and that the respondent's claim, while substantially reduced by the Appeal Panel, had nevertheless succeeded in the amount of $7,816.16. 2. The respondent further submitted: "6. Further reasons why the Tribunal should make the order sought by the respondent is because: (a) the respondent holds concerns that if monies were to be returned to the appellant, the appellant would dissipate those funds; (b) that concern arises because the respondent has had to previously issue the appellant with a Bankruptcy Notice in order to enforce the decision of the Tribunal in the proceedings below; and (c) if a costs order is later made in favour of the respondents, the respondents will likely have to incur further enforcement costs. 7. The appellant has not demonstrated that he will be prejudiced if the order for monies to be paid to it is deferred until the decision as to costs of the proceedings below is dealt with." 1. The appellant filed a response on 20 June 2023. The appellant did not in any meaningful way address the submissions of the respondent but rather sought to re-visit the substantial issues in the original proceedings. 2. Neither party suggested that the Appeal Panel should conduct a hearing to determine the question whether an order for repayment should be made. Having considered the written submissions we are satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions and will dispense with a hearing pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW). Consideration 1. We are not persuaded that there is any good reason that the respondent should not be ordered to repay the full sum of $20,948.20. The Appeal Panel has found that the appellant was not liable to pay the respondent that sum and the respondent has, wrongfully in light of the Appeal Panel's decision, obtained the payment of that sum at the appellant's expense. There is no onus upon the appellant to establish that he will suffer prejudice if he is kept out of his money pending determination of the issues of costs in respect of the first instance proceedings. 2. The respondent has not sought to establish any prejudice through being required to repay the money, beyond the possibility that the appellant may not be able to pay a costs order if the respondent should succeed in obtaining an order for the payment of costs in respect of the first instance proceedings. The respondent has not pointed to any objective circumstance or evidence to establish that there is a real likelihood of that occurring. Indeed, the fact that the appellant did meet the amount of the original judgment, albeit under the threat of bankruptcy proceedings, would tend to suggest otherwise. 3. However, in any event, in our view, even if established, a likelihood that the appellant could not meet a costs order, if made, would not be sufficient basis to decline to order the repayment of the money which the appellant has overpaid. 4. The respondent's submissions effectively amount to the suggestion that the respondent should be given security for its costs. The facts of this case do not meet any of the criteria usually accepted as justifying an order for security for costs. The appellant is an individual and a resident of New South Wales, he is not bringing proceedings on behalf of or for the benefit of any other party. orders 1. Accordingly, our orders will be: 1. Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) dispense with a hearing concerning whether the respondent should repay the appellant the moneys found not to have been owed. 2. Order the respondent Multiproperties Pty Ltd to pay to the appellant George Layoun, within 14 days of the date of publication of this decision, the sum of $20,948.20. ********** 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: 11 August 2023