Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Taphouse Investments Pty Limited v Independent Liquor & Gaming Authority (No. 2) [2023] NSWCATAP 246 Hearing dates: On the papers Date of orders: 30 August 2023 Decision date: 30 August 2023 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member J Lucy, Senior Member Decision: 1. A hearing of the respondent's application for costs of the appeal is dispensed with. 2. The appellant is to pay the respondent's costs of the appeal from, and including, 9 November 2022, as agreed or assessed, on the ordinary basis. Catchwords: COSTS-appeal from Tribunal decision in administrative review proceedings-appeal dismissed pursuant to s 55 (1) (b) of the Civil and Administrative Tribunal Act 2013 (NSW) because misconceived and lacked substance since appeal was moot-respondent's application for costs of the appeal under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW)-whether there were special circumstances warranting an award of costs. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Liquor Act 2007 (NSW) Cases Cited: Taphouse Investments Pty Ltd v Independent Liquor and Gaming Authority [2023]NSWCATAP 171 Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139 Texts Cited: None cited Category: Costs Parties: Taphouse Investments Pty Limited (Appellant) Independent Liquor & Gaming Authority (Respondent) Representation: Counsel: A Cheshire SC and M Gaven (Respondent) Solicitors: Maddocks Lawyers (Respondent) File Number(s): 2022/00256854 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2022] NSWCATAD 255 Date of Decision: 01 August 2022 Before: L Andelman, Senior Member File Number(s): 2021/00277173 REASONS FOR DECISION 1. Following our decision in Taphouse Investments Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWCATAP 171 to dismiss the appeal because it was a moot appeal, the respondent has applied for an order that the appellant pay its costs of the appeal. These are our reasons for decision in respect of that costs application. They should be read in conjunction with our reasons for decision in the substantive appeal. That decision was issued and published on 26 June 2023. The appeal was heard on 17 March 2023 (with further submissions received on 22 March 2023). 2. The appeal was lodged on 29 August 2022. It was an appeal from an administrative review decision of the Tribunal, issued on 1 August 2022, in respect of a refusal by the respondent, in May 2022, to grant an extended trading authorisation (ETA) to the appellant, then the licensee of a hotel in south-western Sydney. 3. The appellant was the licensee at material times, including when the appeal was lodged, but ceased to be the licensee on 8 November 2022, well before the hearing of the appeal, following the completion of a sale of the hotel business and transfer of the licence to a new licensee. 4. In our decision dismissing the appeal we applied the general rule against entertaining proceedings which do not resolve any current legal controversy between the parties and otherwise have no practical consequences for the parties. 5. In written submissions from the respondent, dated 10 July 2023, it applied for its costs of the appeal on the basis that the requirement for "special circumstances" in s 60 (2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) was established. That section, relevantly, provides: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (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. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following— (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), (g) any other matter that the Tribunal considers relevant. ….. 1. As to the application of s 60, the respondent pointed to the fact that we dismissed the appeal pursuant to s 55 (1) (b) of the NCAT Act on the basis that it was misconceived and lacking in substance and that, therefore, the circumstances referred to in s 60 (3) (e) were established. 2. The respondent also submitted that three additional factors warranted such an award of costs, namely: 1. the appeal had no tenable basis (s 60 (3) (c)); 2. the appellant's election to continue the appeal after the transfer of its licence was inconsistent with the overarching duty in s 36 (3) of the NCAT Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings (s 60 (3) (f)); 3. the appellant was at all material times aware of the sale of its business and / or notice of the jurisdictional issue from an early stage of the proceedings but nevertheless elected to continue the appeal (s 60 (3) (g)). 1. No submissions in reply were made by the appellant. Following an enquiry about any such submissions by the Appeal Registry, an email was received from the appellant's solicitors on 11 August 2023, which stated that the appellant had filed a Summons seeking leave to appeal our decision in the substantive appeal and that in such circumstances the appellant did not propose to make submissions in reply on costs and that any costs order would be included in the scope of the appeal to the Supreme Court. 2. In accordance with our directions concerning submissions on costs, the respondent said in its costs submissions that it consented to the costs issue being determined on the papers. No contrary position has been put forward by the appellant. In these circumstances, and given the nature of the issues involved and the written submissions received from the respondent, we agree that the issues for determination in the respondent's costs application can adequately be determined on the papers and that we should make an order for a hearing to be dispensed with (s 50(2) of NCAT Act). 3. In its submissions on costs, the respondent referred also to the following facts and matters: 1. At all material times, the appellant was aware of the significance of the status of ownership of the business and that, for example, at a call-over in the appeal on 14 September 2022 the appellant informed the Tribunal that the sale had not yet completed and sought to have the proceedings stood over until the status of the pending transaction was known. 2. Following an enquiry from the respondent's lawyers, on 8 November 2022, the appellant's solicitor, in a letter, informed the respondent that the appellant was no longer the licensee of the hotel, had no ongoing interest in the hotel and that, in the circumstances, it was appropriate that the new business owner (Nelmeer Ashfield Pty Ltd) be joined to the appeal proceedings. No such step was pursued by the appellant. 3. In a letter, dated 6 December 2022, from the respondent's solicitor to the appellant's solicitor (at Respondent's Appeal Book, page 599, in the appeal papers) it was stated that the sale of the hotel and transfer of the licence had rendered the appeal futile, the appellant should not continue the appeal, it was the former licensee upon which licence the ETA was sought and both the respondent's and Tribunal's decisions were specific to the appellant as the licensee at the relevant time. It was also stated that the new business owner had no standing to continue the appeal. The letter concluded that the appellant was put on notice that the respondent may rely upon the matters stated in the letter to seek a dismissal of the appeal and to support an application for costs. 4. In its reply submissions on the appeal, provided on 28 February 2023, the respondent raised as a threshold matter that because of the change of licensee the appeal should be dismissed with costs because it was "without utility and incompetent" on the basis that the appellant no longer had any interest in the appeal proceedings and that the respondent's refusal decision was specific to the appellant. The respondent submitted that these were special circumstances warranting an order of costs in favour of the appellant pursuant to s 60 (2). 1. As appears from our reasons for decision in the substantive appeal, the appellant, unsuccessfully, advanced various arguments as to why the appeal should not be dismissed as a moot appeal. 2. We consider that these various arguments were either misconceived or lacking in substance. 3. First, there was an argument to the effect that the appellant had a right of appeal which entitled it to a determination of the appeal on its merits, but this paid no regard to the law concerning moot appeals, as applied by the Tribunal (see, for example, Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139 (Feeney)). 4. Next, some arguments were presented with a view to establishing that the new licensee could obtain success in the current proceedings, either on appeal or by remitter. However, these arguments confronted the obstacle of the clear language of s 49 (2) of the Liquor Act 2007 (NSW) and disregarded the fact that there had been no assessment by the respondent of the merits of the grant of an extended trading authorisation to the new licensee. 5. Finally, some arguments were presented as to why we should exercise our discretion to determine the appeal even though it had no practical consequences for the parties. However, as appears in our decision on the substantive appeal, those arguments lacked any substance. 6. Accordingly, we are satisfied that the circumstances referred to in s 60 (3) (e) have been established. 7. Bearing also in mind that it is an aspect of the approach taken in respect of moot proceedings that the other party should not be put to the costs of answering such proceedings (see Feeney at [26]), we are satisfied that there are special circumstances warranting an award of costs in respect of the appeal to be made in favour of the respondent. We also consider that it is appropriate to exercise our discretion to make an order for costs. 8. In the circumstances, we consider that it is unnecessary for us to determine whether any of the other relevant provisions of s 60 (3) relied upon by the respondent was applicable. 9. As already mentioned, it was on 8 November 2022 that the licence was transferred to the new licensee. It was from the time when that occurred that pursuit of the appeal was misconceived and lacking in substance. We do not know enough about the facts to be able to say that at the time when the appeal was lodged (on 29 August 2022) the appellant must have known that it was inevitable that this change of licensee would occur and would do so before the determination of the appeal. 10. Accordingly, we consider that the order for costs to be made in favour of the respondent should be that the appellant is to pay the respondent's costs of the appeal from, and including, 9 November 2022, as agreed or assessed, on the ordinary basis. 11. We so order. 12. As already referred to above, pursuant to s 50 (2) of the NCAT Act, we also order that a hearing of the respondent's costs application be dispensed with. ********** 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: 30 August 2023