Civil and Administrative Tribunal New South Wales Medium Neutral Citation: 357 Thornleigh Place Pty Limited v Shams (No 2) [2023] NSWCATAP 229 Hearing dates: On the papers Date of orders: 17 August 2023 Decision date: 17 August 2023 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member E Bishop SC, Senior Member Decision: 1. A hearing in respect of the applications concerning the costs of the appeal is dispensed with. 2. The respondent is to pay 90% of the appellant's costs of the appeal, as agreed or assessed, on the ordinary basis. Catchwords: COSTS — costs of appeal — no need for special circumstances because amount in issue on appeal well in excess of $30,000 — appellant successful in having orders made at first instance set aside — order for proceedings concerning claim for unconscionable conduct and rental arrears remitted to the Tribunal for redetermination — appellant unsuccessful in limited respects — discount applied to costs awarded to the successful appellant. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: 357 Thornleigh Place Pty Limited v Shams [2023] NSWCATAP 127 Bondi Builders Pty Limited v Dennett [2022] NSWCATAP 317 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Thompson v Chapman [2016] NSWCATAP 6 Texts Cited: None cited Category: Costs Parties: 357 Thornleigh Place Pty Ltd (Appellant) Halimah Shams (Respondent) Representation: Solicitors: Fortis Law (Appellant) Respondent (Self- Represented) File Number(s): 2022/00334747 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2022] NSWCATCD 177 Date of Decision: 12 October 2022 Before: D Bluth, Senior Member File Number(s): COM 21/23200 and COM 21/25982 REASONS FOR DECISION 1. This decision deals with the parties' applications concerning the costs of the appeal, the subject of our decision in 357 Thornleigh Place Pty Limited v Shams [2023] NSWCATAP 127. These reasons should be read in conjunction with the reasons for decision in the substantive appeal. 2. Written submissions concerning applications for costs have been received from the parties, including submissions as to whether a hearing in respect of the application should be dispensed with, pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 3. As to whether a hearing should be dispensed with, both parties submit that such a hearing is unnecessary and that the applications should be determined on the papers. We agree and consider that because of the nature of the issues involved and written submissions we have received, the issues for determination can be adequately determined in the absence of the parties. We will make an order dispensing with a hearing. 4. It is uncontroversial that the amount in dispute in the appeal well exceeded $30,000. Consequently, the question of costs did not involve the question as to whether there were special circumstances warranting the making of an order of costs in favour of a party, as required by s 60 of the NCAT Act. That question was to be determined by the ordinary rules concerning the making of costs orders, in accordance with r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) by reason of r 38A (concerning costs of an appeal). 5. Correctly, the appellant submitted that when r 38 applies, usually a costs order would be made in favour of the successful party on the basis that costs follow the event: see Thompson v Chapman [2016] NSWCATAP 6 at [67]; Bondi Builders Pty Limited v Dennett [2022] NSWCATAP 317 at [28] – [29]. 6. The appellant submitted that it was the successful party in view of its success in having the relevant orders made by the Tribunal in favour of the respondent set aside on the basis that most of the eight grounds of appeal were upheld. 7. The respondent submitted that we should order that the costs of the appeal be costs in the cause or make an order that there be no order as to the costs of the appeal. Alternatively, the respondent submitted that it should only be required to pay 80% of the appellant's costs of the appeal, on the ordinary basis. 8. As to these submissions by the respondent, it was contended that: 1. This was a case where the appellant's success was significantly moderated by the fact that the matter has been sent back for another hearing, it having been ordered by us that the material claims by the parties be remitted to a differently constituted Tribunal for redetermination. It was submitted that the real issues in the proceedings remain to be resolved and that, having regard to the guiding principle in s 36 of the NCAT Act, a just resolution of the costs' applications should not require that one party pay the costs of the other in respect of the appeal. 2. Additionally, or alternatively, relying upon Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38] concerning loss on a separate issue, whilst the appellant had succeeded on grounds of appeal concerning the finding of unconscionable conduct by the appellant, it had failed on the ground of appeal concerning its alternative claim that it was entitled to terminate the lease for failure to top up the guarantee. Accordingly, a discount reflecting the appellant's lack of success on separate issues should be applied. 1. We did not receive any submissions from the appellant in reply to these submissions by the respondent. 2. We accept that the appellant was unsuccessful in the two respects relied upon by the respondent, namely, that it did not succeed in obtaining the substantive orders in its favour that it sought in its Notice of Appeal (instead remitter for redetermination was ordered) and its ground of appeal concerning termination of the lease for failure to provide the top up guarantee was rejected. We also accept that these were separable issues for the purpose of costs orders, in accordance with the approach set out in Bostik. 3. As to the significance, concerning costs, of our order for the proceedings to be remitted for redetermination, very little attention was paid in the written submissions of the parties to the question raised by the Notice of Appeal whether the Appeal Panel should proceed to make substantive orders in favour of the appellant by determining the merits of the disputes between the parties. Furthermore, virtually no time was occupied at the hearing of the appeal in respect of this issue. This was because, near the commencement of the hearing of the appeal, we raised with the parties the difficulty we confronted in making any order on the appeal, other than that the proceedings be remitted for redetermination, in the event that we found that there was appealable error sufficient to warrant the Tribunal's orders being set aside. The response from the parties was that if relevant appealable error was found then the proceedings should be remitted for redetermination. 4. It is clear from the written and oral submissions made by the parties in the substantive appeal that the main issue to be dealt with on the appeal was whether there was appealable error by the Tribunal concerning the finding of unconscionable conduct by the appellant (this was the subject of seven of the eight grounds of appeal). It is also clear that the appellant was the successful party in this regard. 5. The respondent did achieve a limited measure of success on the appeal by our rejection of Ground 7 concerning termination of the lease by the non-provision of a top up guarantee. It is clear from our reasons for decision in the substantive appeal that this raised a material issue in the dispute between the parties. However, it was an issue that did not involve a significant part of the written submissions of the parties and it occupied a very small amount of the time at the hearing of the appeal. 6. In view of these matters, we disagree with the respondent's submission that a just resolution of the costs dispute would be an order that the costs of the appeal be costs in the cause, or an order that there be no order as to costs. 7. Furthermore, we accept that some discount should be applied in view of the appellant's lack of success in obtaining orders in its favour in a determination of the disputes between the parties and concerning Ground 7 of the appeal. 8. However, for the reasons we have referred to concerning the limited time occupied by these separable issues on which the appellant was unsuccessful, we consider that an appropriate discount would be that the respondent pay 90% of the appellant's costs of the appeal, and not the greater discount of 80% put forward by the respondent. 9. Accordingly, we order that the respondent pay 90% of the appellant's costs of the appeal. Orders 1. A hearing in respect of the applications concerning the costs of the appeal is dispensed with. 2. The respondent is to pay 90% of the appellant's costs of the appeal, as agreed or assessed, on the ordinary basis. ************ 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: 17 August 2023