Civil and Administrative Tribunal New South Wales Medium Neutral Citation: TJM Holdings Pty Ltd v Woori International Pty Ltd (costs) [2024] NSWCATAP 99 Hearing dates: On the papers Date of orders: 30 May 2024 Decision date: 30 May 2024 Jurisdiction: Appeal Panel Before: G Ellis SC, Senior Member G Burton SC, Senior Member Decision: The appellant is to pay the respondent's costs of the appeal, on the ordinary basis, as agreed or assessed. Catchwords: COSTS - Whether Civil Procedure Act 2005 (NSW) applies - whether bill of costs in taxable form required - r 38A and r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) applied - costs to be determined by assessment if not agreed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Civil Procedure Act 2005 (NSW) Cases Cited: 203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited [2017] NSWCATAP 29 Bonita v Shen [2016] NSWCATAP 159 Hanave Pty Ltd v/ats Wine Nomad Pty Ltd [No 2] [2022] NSWCATAP 361; [2023] NSWSC 265 Latoudis v Casey [1990] HCA 59 News v Cotes [2019] NSWCATAP 186 Oshlak v Richmond River Council [1998] HCA 11 Thompson v Chapman [2016] NSWCATAP 6 TJM Holdings Pty Ltd v Woori International Pty Ltd [2024] NSWCATAP 72 Texts Cited: None cited Category: Costs Parties: TJM Holdings Pty Ltd (Appellant) Woori International Pty Ltd (Respondent) Representation: Solicitors: M Metledge (Appellant) Alford Lee & Associates (Respondent) File Number(s): 2023/00356605 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil & Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 13 October 2023 Before: G Sarginson (Senior Member) File Number(s): COM 23/40585 REASONS FOR DECISION Outline 1. Following our dismissal of an appeal on 6 May 2024 (TJM Holdings Pty Ltd v Woori International Pty Ltd [2024] NSWCATAP 72), the respondent to the appeal (Woori) sought an order for costs. 2. We have determined that, in relation to the appeal, the rule that costs follow the event should apply, and that those costs should be assessed if not agreed. 3. We have not dealt with Woori's expanded application for costs in the Tribunal beyond the original costs order since those do not form part of the costs of the appeal, the appropriate forum to make that application was to the Tribunal as constituted to hear and determine the relevant substantive matters and that costs application apparently was not made at or following such determination. Relevant law 1. In the Civil and Administrative Tribunal Act 2013 (NSW) (the Act) the effect of s 60 is that each party is to bear its own costs unless there are special circumstances which warrant an order for costs. However, s 35 of the Act operates to make s 60 subject to r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules) which provides that the Tribunal may award costs in proceedings in the Consumer and Commercial Division if the amount claimed or in dispute exceeds $30,000. 2. When r 38 applies there is a general discretion to award costs and it is well established, by decisions such as News v Cotes [2019] NSWCATAP 186, Bonita v Shen [2016] NSWCATAP 159 and Thompson v Chapman [2016] NSWCATAP 6, that: (1) the starting point is that the usual order for costs should be in favour of the successful party, (2) the award is not to punish the unsuccessful party but to compensate the successful party for the costs incurred in the proceedings, and (3) departure from the usual order is permissible if the circumstances favour that course of action. 3. Simply stated, when rule 38 applies it is not necessary to establish special circumstances and the usual order is that costs follow the event (ie follow the outcome of the case) unless there is disentitling behaviour by the successful party: Latoudis v Casey [1990] HCA 59, Oshlak v Richmond River Council [1998] HCA 11. 4. In the Act, s 60(4) permits the Tribunal to determine the amount of costs and decisions such as 203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited [2017] NSWCATAP 29 at [37] (Skybloo) set out the considerations which apply when deciding whether to by-pass the costs assessment process by not only making an order for costs but also determining the amount of those costs. Those considerations include the amount claimed for costs proportionate to the issues litigated, the time and expense of the assessment process, the complexity of the case, whether the party paying costs is likely to be able to pay them, the relative responsibility of the parties for costs incurred, and an impressionistic discount (based on informed assessment) to take account of the contingencies relevant in any formal assessment process. 5. In the Rules, r 38A is headed "Costs in internal appeals", provides as follows: (1) This rule applies to an internal appeal lodged on or after 1 January 2016 if the provisions that applied to the determination of costs in the proceedings of the Tribunal at first instance (the first instance costs provisions) differed from those set out in section 60 of the Act because of the operation of- (a) enabling legislation, or (b) the Division Schedule for the Division of the Tribunal concerned, or (c) the procedural rules. (2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal. 1. Simply stated, by reason of r 38A, the costs regime in relation to costs of an appeal is the same as was the costs regime that applied at first instance: Hanave Pty Ltd v/ats Wine Nomad Pty Ltd [No 2] [2022] NSWCATAP 361 at [77]-[79] (not affected by the appeal proceedings [2023] NSWSC 265). Respondent's submissions 1. In compliance with the directions made on 6 May 2024, on 20 May 2024 the Woori's solicitor served submissions which sought an order for the appellant (TJM) to pay the respondent's costs of the appeal. Those submissions also sought a determination of the amount of those costs, and an amount of $25,300 was claimed. 2. Despite s 60 of the Act not being applicable, submissions were made in support of a claim that there were special circumstances warranting an order for costs. Those submissions were made under three headings: "Failure to Comply with Directions and Orders", "Unsupported Objections and Concerns", and "Complexity and Additional Work". Applicant's submissions 1. The response of the appellant's solicitor, later the same day, was to seek a bill for costs in taxable form, asserting that was required "under the applicable law", but not indicating what it was contended was that applicable law. After an itemised invoice was provided, the solicitor for the respondent sent two pages of objections which suggested that (1) the Tribunal has no jurisdiction to hear the application, and (2) no proper bill of costs in taxable form was provided. 2. After referring to the first instance proceedings, paragraphs 18 and 19 of TJM's objections said: [The appellant] seeks an Order for indemnity costs as a lump sum of $2,500 against [the respondent] and/or its solicitor … pursuant to ss. 98 or 99 respectively of the Civil Procedure Act 2005 for wrongly bringing this Application in contravention of the applicable Rules. [The appellant] seeks an Order that such amount be paid within 14 days. 1. There was no indication as to what were said to be "the applicable Rules". Consideration 1. The amount claimed in the proceedings at first instance exceeded $30,000. That being the case, the application of r 38A means that r 38 applies to the costs of the appeal. 2. Hence, it is not necessary to consider whether there are special circumstances warranting an order for costs. Instead, the position is that Woori as the successful respondent is entitled to an order for costs because, by reason of the amount claimed or in dispute, costs follow the event unless there is disentitling conduct. TJM has not established any such conduct, and we have been unable to discern any such conduct. 3. There is no requirement for Woori as the successful respondent to submit a bill of costs in taxable form to be able to obtain an order for costs. A bill of costs in taxable form would later be required as part of the process whereby costs are assessed. 4. It must be accepted that we have do the power to determine those costs. However, we do not do so because, applying what was said in Skybloo, we do not consider this is a case that warrants by-passing the process whereby costs are assessed. The number of components and the amount claimed proportionate to the issues litigated do not, in our view, favour that course. We particularly note that Woori's solicitor's tax invoice dated 21 May 2024, which delineated amounts for particular work, and reflected the same total amount as an undelineated narrative on a tax invoice dated 20 May 2024, covered costs not only of the appeal but also of matters since the original costs order which are distinct matters for assessment. While some of the delineation clearly related to the appeal alone, other categories were uncertain in that respect. 5. TJM has not articulated a basis for the claim that the Tribunal has no jurisdiction in relation to costs. Nor has TJM explained how, if we have no jurisdiction to make an order for costs in favour of Woori, we have jurisdiction to make an order for costs in favour of TJM. On TJM's argument, if an order for costs cannot be made until Woori provides a bill of costs in taxable form, then it must be noted that TJM has not provided a bill of costs in taxable form for its claimed costs. 6. In view of the specific provisions as to costs in the Act and the Rules, we do not accept that the costs of the appeal are governed by either s 98 or s 99 of the Civil Procedure Act 2005 (NSW), although the case law that informs the usual costs rules are of relevance if those usual costs rules apply by reason of the specific provision in the Act and the Rules. 7. We have not dealt with Woori's expanded application for costs in the Tribunal beyond the original costs order since those do not form part of the costs of the appeal, the appropriate forum to make that application was to the Tribunal as constituted to hear and determine the relevant substantive matters and that costs application apparently was not made at or following such determination. Orders 1. For the reasons set out above, the following order is made: 1. The appellant is to pay the respondent's costs of the appeal, on the ordinary basis, as agreed or assessed. ************ I hereby certify that this is a true and accurate record of the reasons for Decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 May 2024