Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Subway Vault (NSW) Pty Ltd v Gogo MD Pty Ltd (No 2) [2023] NSWCATCD 105 Hearing dates: On the papers Date of orders: 25 September 2023 Decision date: 25 September 2023 Jurisdiction: Consumer and Commercial Division Before: G Sarginson, Senior Member Decision: (1) An oral hearing on the issue of costs is dispensed with under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). (2) The applicant (Subway Vault (NSW) Pty Ltd) is to pay the costs of the respondent (Gogo MD Pty Ltd) of the Tribunal proceedings as agreed or assessed on the basis set out in the legal costs legislation (as defined in s 3A of the Legal Profession Uniform Law Application Act 2014 (NSW)). Catchwords: COSTS---r 38 Civil and Administrative Rules 2014 (NSW)---Dismissal for want of jurisdiction---Principle that costs follow event---No basis to depart from usual principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Retail Leases Act 1994 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Allsop Investments Pty Ltd v Jerkovic [2020] NSWSC 113 BKB Constructions Pty Ltd v Sawan [2022] NSWCATAP 103 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84 Oshlack v Richmond River Council [1999] HCA 11; (1993) 193 CLR 72 Promina Design & Construction Pty Ltd v The Owners-Strata Plan No 97449 [2023] NSWCATAP 252 Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 The Owners-Strata Plan No 14172 v Cai [2020] NSWCATAP 10 Texts Cited: None cited Category: Costs Parties: Subway Vault (NSW) Pty Ltd (Applicant) Gogo MD Pty Ltd (Respondent) Representation: Counsel: M. Bennett (Applicant) Solicitors: SBA Lawyers (Respondent) File Number(s): COM 22/48012 Publication restriction: Nil REASONS FOR DECISION 1. This is a costs application by the respondent arising from the dismissal of the proceedings as the Tribunal has no jurisdiction under the Retail Leases Act 1994 (NSW) (RL Act). 2. The Tribunal gave extensive reasons in its decision dated 8 August 2023. The Tribunal found that the premises the subject of the proceedings were not a "retail shop" within the applicable definition under the RL Act and accordingly the Tribunal had no jurisdiction. 3. As the parties had not been given the opportunity to be heard on the issue of costs, the Tribunal made procedural directions in its decision of 8 August 2023 for costs submissions. 4. Both parties made written submissions on the issue of costs in accordance with those procedural directions. The Tribunal has read and considered the written costs submissions of both parties. 5. Neither party seeks a further oral hearing on the issue of costs. In any event, the Tribunal is satisfied that it is appropriate to determine the issue of costs on the basis of the written submission of the parties and without further oral hearing under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 6. The respondent's submissions are summarised as follows: 1. The amount claimed or in dispute in the proceedings by the applicant exceeded $30,000 and the provisions of Reg. 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) apply to the issue of costs. The respondent does not have to establish 'special circumstances' under s 60 (2) of the NCAT Act to be awarded costs. 2. The respondent was the successful party and costs should follow the event. 1. The applicant's submissions are summarised as follows: 1. The respondent's costs submissions were served beyond the time period identified in the Tribunal's procedural directions and should not be considered. 2. Even if the costs submissions are considered, the decision of the Tribunal was an interlocutory decision, and the dispute between the parties was not determined on the merits. Each party should bear their own costs. 1. The respondent's submissions in reply are summarised as follows: 1. The applicant did not provide any evidence of when the costs submissions were served and the Tribunal should not accept they were served out of time. 2. It was the applicant's choice to bring proceedings in the Tribunal rather than in a Court of competent jurisdiction. 3. The applicant was informed by the respondent in a letter of 3 November 2022 that the respondent's position was that the Tribunal had no jurisdiction under the RL Act as the premises were not a retail shop and the lease was not a retail shop lease. The applicant was put on notice it should withdraw the Tribunal proceedings. 1. Proceedings that involve an interlocutory decision not involving final determination of the merits of the dispute is not a good reason for departing from the usual principle (when Reg. 38 of the NCAT Rules applies) that the unsuccessful party pays the costs of the successful party (The Owners-Strata Plan No 14172 v Cai [2020] NSWCATAP 10). CONSIDEREATION 1. The applicant claimed damages of approximately $190,000 in the proceedings. Accordingly, Reg. 38 of the NCAT Rules apply, and the respondent does not have to establish 'special circumstances' to obtain a costs order in its favour. 2. In respect of the respondent not complying with the procedural directions regarding the filing and serving of costs submissions, the applicant has not provided any evidence that the costs submissions were served out of time. Even if they were, there is no evidence of any disadvantage or prejudice to the applicant caused by late submissions, and the Tribunal would extend the time period in any event under s 41 of the NCAT Act on the principles expressed in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. 3. The respondent was the successful party in the proceedings. Accordingly, it is entitled to a costs order in its favour, unless there is disentitling conduct on behalf of the respondent, or some other established basis for departing from the usual principle (Oshlack v Richmond River Council [1999] HCA 11; (1993) 193 CLR 72). 4. It is debatable as to whether a matter set down for a hearing on jurisdiction and which was dismissed because there is no jurisdiction is an interlocutory decision, or a separate question of law set down for hearing as a preliminary matter (see, for example, Allsop Investments Pty Ltd v Jerkovic [2020] NSWSC 113 at [14]-[15]). 5. A Court or Tribunal can regard it as appropriate to determine the issue of jurisdiction at any stage in the proceedings (BKB Constructions Pty Ltd v Sawan [2022] NSWCATAP 103 at [54] and the authorities referred to therein). 6. "Interlocutory decision" is defined in s 4 of the NCAT Act as, relevantly, summary dismissal of proceedings (s 4 (h1)) and any other interlocutory issue before the Tribunal (s 4 (i)). 7. By reason of the principles in s 38 (1) and (4) of the NCAT Act, the Tribunal has the power to set a question or matter for hearing as a separate matter in the same manner in which r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) operates in NSW Courts. 8. It is unnecessary to make any concluded finding as to whether the decision to dismiss proceedings for want of jurisdiction was a final decision (being a separate question of law determined as a preliminary matter) or an interlocutory decision (being a summary dismissal of proceedings) for the purpose of this costs decision. 9. These proceedings were set down "for a separate hearing on the issue of jurisdiction" at the directions hearing on 20 December 2022. There was no application by the applicant to transfer proceedings to a Court under Sch. 4 Cl. 6 of the NCAT Act. In such applications, the Tribunal has the power to consider the issue of jurisdiction in the context of whether there are appropriate grounds established to transfer proceedings, and a decision whether or not to transfer is an interlocutory decision (Promina Design & Construction Pty Ltd v The Owners-Strata Plan No 97449 [2023] NSWCATAP 252). At all times, the position of the applicant was that the Tribunal had jurisdiction, and the position of the respondent was that the Tribunal did not have jurisdiction. 10. Irrespective of whether or not this decision is an interlocutory decision, it was a decision that determined to finality whether or not the Tribunal had jurisdiction under the RL Act. It did not involve a withdrawal of proceedings. Had that occurred, there would have been no determination of the issue of jurisdiction to finality or any determination of the merits of the dispute, and separate costs principles would apply (Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 624-625 (Lai Qin); Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84 at [25]). 11. Further, it is well established that the Tribunal has the power to make costs orders involving interlocutory matters. 12. In circumstances where the application was set down for a hearing on the issue of jurisdiction; there was a contested hearing on that issue; and the Tribunal dismissed the proceedings under the RL Act because it did not have jurisdiction, the principles in Lai Qin have no application. There is no basis for the Tribunal to depart from the usual principle that the unsuccessful party pay the successful party's costs of the whole of the Tribunal proceedings. 13. The respondent does not seek a costs order on an indemnity basis for the whole of the proceedings or any part of the proceedings, so it is unnecessary to explore that issue. The order for costs is made on the ordinary basis. ORDERS 1. An oral hearing on the issue of costs is dispensed with under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The applicant (Subway Vault (NSW) Pty Ltd) is to pay the costs of the respondent (Gogo MD Pty Ltd) of the Tribunal proceedings as agreed or assessed on the basis set out in the legal costs legislation (as defined in s 3A of the Legal Profession Uniform Law Application Act 2014 (NSW)). ********** 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: 26 September 2023