New South Wales Supreme Court CITATION : Ultra Modern Developments v Donmap Digital Images & Ors [2003] NSWSC 1079 HEARING DATE(S) : 10 November 2003 JUDGMENT DATE : 24 November 2003 JURISDICTION: Common Law Division Administrative Law List JUDGMENT OF : Master Malpass DECISION : The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings The exhibits may be returned. CATCHWORDS : Appeal from Tribunal - questions of costs - jurisdiction of Tribunal - jurisdiction to award costs - costs not a subject of appeal to this Court. Consumer, Trader and Tenancy Tribunal Act 2001, s 53, s 53 (1) and (2), s 67. Fair Trading Tribunal Act 1998. LEGISLATION CITED : Consumer, Trader and Tenancy Regulation 2002, cl 20. Home Building Regulation 1997. CASES CITED : Collings Homes v Head & Ors [2002] NSWSC 1219. Ultra Modern Developments Pty Limited T/as Eagle Homes (Plaintiff) v PARTIES : Donmap Digital Images Pty Limited T/as Donovan Associates (First Defendant) Consumer, Trader & Tenancy Tribunal (Second Defendant) Angela D'Angelo (Third Defendant) FILE NUMBER(S) : SC 30043 of 2003 Mr P Huntington (Plaintiff) COUNSEL : Mr G Gemmell (First Defendant) N/A (Second Defendant) M Dolenec (Third Defendant) Hunter Lawyers (Plaintiff) SOLICITORS : Phillips Fox (First Defendant) I V Knight - Crown Solicitor - Submitting Appearance (Second Defendant) Turnbull Bowles Lawyers Pty Limited (Third Defendant) LOWER COURT Consumer, Trader & Tenancy Tribunal JURISDICTION : LOWER COURT BU 2001/74379 FILE NUMBER(S) : LOWER COURT C Paull Senior Member JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST Master Malpass Monday 24 November 2003 30043 of 2003 Ultra Modern Developments Pty Limited T/as Eagle Homes v Donmap Digital Images Pty Limited & Ors JUDGMENT 1 MASTER: On 27 September 2001, the third defendant commenced proceedings against the plaintiff in the Consumer, Trader and Tenancy Tribunal (the Tribunal). The plaintiff brought Cross-Claims against both the first defendant and the third defendant. 2 The plaintiff is a builder. The third defendant had entered into a building contract with the plaintiff for the carrying out of building works on her land. It was made on 13 July 1999. 3 It appears that the proceedings had a considerable history in the Tribunal. When the matter came on for hearing, the Tribunal raised a question of jurisdiction concerning the Cross-Claim. 4 After the making of submissions, the Tribunal reached a decision on the jurisdictional question. It decided that it did have jurisdiction to entertain the Cross-Claim. At the time, no reasons were given for the decision. Thereafter, the Tribunal became aware of my decision in Collings Homes v Head & Ors [2002] NSWSC 1219. It brought the decision to the attention of the parties and asked them to give it consideration. 5 When the hearing resumed on 4 February 2003, the plaintiff sought to have the matter transferred to the District Court because of the jurisdictional questions. The other parties opposed any transfer. The application for transfer was pressed by the plaintiff. It was dismissed by the Tribunal. 6 The question of jurisdiction was re-agitated. This led to the Tribunal then deciding that it did not have jurisdiction to entertain the Cross-Claim. Again, at that time, no reasons were given for the decision. The Cross-Claim brought against the first defendant was dismissed. The hearing of the third defendant's claim against the plaintiff proceeded. At a time when it was part heard, the third defendant changed her position and consented to the matter being transferred to the District Court. It appears that the plaintiff was making jurisdictional objections to part of her claim. No step was taken to have the Cross-Claim against the first defendant resuscitated. An order of transfer to the District Court was made and certain costs questions were argued. The questions were determined on 14 April 2003. Written reasons were provided for the costs determinations. 7 The Tribunal made the following costs orders:- "1. Ultra Modern Developments Pty Ltd trading as Eagle Homes are to pay fifty percent (50%) of the costs of Donovan Images Pty Ltd up to and including 31 January 2003 on a party party basis as agreed or assessed. Thereafter Ultra Modern Developments Pty Ltd are to pay the costs of Donmap Digital Images Pty Ltd on an indemnity basis as agreed or assessed. 2. Ultra Modern Developments Pty Ltd trading as Eagle Homes are to pay the costs of the day of 4 February 2003 of Angelo (sic) D'Angelo as agreed or assessed." 8 After some desultory activity in the District Court, the third defendant decided that she did not wish to proceed with her claim. On 30 September 2003, she was given leave to discontinue. The plaintiff's application for costs was dismissed. The court has been told that the plaintiff contemplates taking further action in the District Court (it could be thought that the taking of such action, rather than the bringing of this appeal, was the practical course for it to take). However, at this stage, the position remains unchanged. There has been no appeal from the decisions that have been made. This Court has presently no jurisdiction to deal with the orders that have been made by the District Court. 9 By Summons filed on 12 May 2003, the plaintiff brought an appeal to this Court. It came on for hearing on 10 November 2003. The Summons has been amended a number of times. At the commencement of the hearing the plaintiff had before the court a Further Amended Summons filed on 16 October 2003 and leave was sought to further amend this document. After some debate, leave to make further amendments was given. Such amendments were ultimately not the subject of real dispute. Later during the hearing, yet a further attempt was made to amend the document. This application was opposed by the first defendant (the only defendant affected by the proposed amendments). After yet further debate on the matter of the amendments, the application was rejected. The matters of amendment saw the unnecessary throwing away of about an hour of valuable hearing time. All questions of amendment could and should have been dealt with before a special fixture for the hearing was sought. A hearing date was given only because of the assurance that the matter was then ready for hearing. 10 The Further Amended Summons sets out five grounds of appeal. Since the filing of that Summons, the plaintiff has abandoned ground 2. The grounds relied on are as follows:- "1. The Consumer Trader & Tenancy Tribunal erred in finding that it did not have jurisdiction to entertain the cross claim brought by the Plaintiff against the First Defendant before the Tribunal. 2. …………… 3. Alternatively, as between the Plaintiff and the First Defendant. the (sic) Consumer Trader & Tenancy Tribunal erred: (a) In making an order for costs against the Plaintiff and in favour of the First Defendant in circumstances where no question of jurisdiction was raised on the initiative of the Third Defendant and the Consumer Trader & Tenancy Tribunal had earlier ruled that it did have jurisdiction. (b) Alternatively, in making an order for indemnity costs, as between the Plaintiff and the First Defendant in circumstances where the orders made on 4 February 2003 did not dispose of or adjudicate the merits of the application and where there was no material properly before the Consumer Trader & Tenancy Tribunal for the awarding of indemnity costs and where, in the events which happened, the awarding of indemnity costs was not appropriate. 4. The Consumer Trader & Tenancy Tribunal below erred in making an order for costs on 4 February 2003 against the Plaintiff and in favour of the Third Defendant in circumstances where the Third Defendant had successfully opposed the Plaintiff's Application for transfer of proceedings to the District Court of New South Wales and then, instead of proceeding with the hearing of her Application to the Tribunal, as she was entitled to do, changed her position and consented to an order for transfer of the proceedings before the Tribunal to the District Court of New South Wales. 5. In the alternative, the Consumer Trader & Tenancy Tribunal further erred in making an order for costs in that once the tribunal found that it had no jurisdiction to deal with the Cross Claim, the Tribunal had no jurisdiction to award costs. " 11 The Further Amended Summons sought relief in respect of the orders made on 14 April 2003 only. These were the orders made as to costs. No appeal has been brought against the order made on 4 February 2003 dismissing the Cross-Claim. Any appeal brought against that decision would presently be incompetent and well out of time. It would require an extension of time which would be the subject of contest. The appeal would have no utility as whatever remains on foot between the parties is now in the District Court. The further amendments which were opposed and rejected had belatedly sought to address this problem. If they had been allowed inter alia there would be an increase in hearing time, probably the matter would have become part heard and not be concluded until some time during next year. In my view, even by then, too much disproportionate time and expense had already been expended on questions of costs. 12 The appeal is brought pursuant to s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (the Act). This section restricts the appeal to cases where the Tribunal decides a question with respect to a matter of law. The onus rests with the plaintiff to demonstrate such an error and that it justifies the disturbing of the decision. 13 This is yet another of the numerous appeals that are now coming to this Court solely on a question of costs. The appeal was opposed by both the first and third defendants. It occupied most of a day's hearing time. Following the conclusion of hearing, came a further barrage of submissions. 14 Before proceeding further, I should at the outset make certain preliminary observations. The court has been deluged with voluminous submissions from the plaintiff (both written and oral) during and after the hearing. I do not propose to deal expressly with each and every one of the numerous arguments agitated in those submissions. It is unnecessary to do so and it would see this Court performing a Herculean task totally disproportionate to what is involved in this appeal. 15 I shall now first turn to the appeal brought against the order for costs made in favour of the first defendant. The plaintiff had unsuccessfully submitted in the Tribunal that each party to the Cross-Claim should pay its own costs. 16 A material consideration which led to the decision was the view reached by the Tribunal as to lack of jurisdiction. The first defendant was successful on this issue. It appears that this result was reached by application of what was said in Collings. The court has heard extensive and abortive argument on the question of whether or not that view was erroneous. At least part of the argument was not put to the Tribunal. Certain of the arguments were misconceived (inter alia Statutory provisions relied on had not come into force). The argument was pointless because the decision made by the Tribunal on the question of jurisdiction has not been disturbed by a successful appeal. Accordingly, it is not open to the plaintiff to argue that the decision was erroneous. 17 The plaintiff has placed stress on the fact that it was the Tribunal that first raised the question of jurisdiction. In the circumstances of this case I do not see that as being a matter of great significance and in any event it was taken into account by the Tribunal. It saw the plaintiff being ordered to pay only fifty percent of the first defendant's costs. It must be borne in mind that the plaintiff was the party that brought the Cross-Claim. If the Tribunal lacked jurisdiction to entertain it, the ultimate responsibility for the error rests with the plaintiff. 18 A further submission made by the plaintiff is that the Tribunal had no power to award costs in cases where it lacked jurisdiction. I do not accept that submission. 19 Again, it was a submission that was not made to the Tribunal. Indeed, it is not consistent with what was put to the Tribunal. Be that as it may, in my view, the submission is erroneous. 20 The Tribunal has been given express powers to award costs. The powers may be found in s 53 of the Act and the Consumer, Trader and Tenancy Regulation 2002 (the Regulation). These provisions are intended to impose an express costs regime. 21 Subsection (1) of s 53 does say that subject to the section and the regulations, the parties in any proceedings are to pay their own costs. However, subs (2) thereof provides that the Tribunal may, in accordance with the regulations, award costs in relation to any proceedings. The costs regime is intended to have application to various categories (which are distinguished by the quantum of the amount which is claimed or in dispute). 22 Clause 20 of the Regulation provides inter alia that where the amount claimed or in dispute is more than $25,000 (which is the position in this case), the Tribunal may award costs in relation to the proceedings in such circumstances as it thinks fit. In such a case, the discretionary power is expressed in the widest of terms. 23 In submissions to the Tribunal, counsel for the plaintiff had relied on s 53 of the Act and the Regulation. However, the Tribunal took the view that for the purposes of the proceedings then before the Member that the Fair Trading Tribunal Act 1998 and the relevant regulation had application. The proceedings had been commenced in the Tribunal's predecessor (the Fair Trading Tribunal). It is now accepted by the plaintiff that this approach was correct. 24 It is immaterial which of the regulations has application. It is common ground that the respective provisions are similar for present purposes. 25 In my view, the relevant express costs provisions enable the Tribunal to award costs in relation to any proceedings (including in relation to claims in respect of which the Tribunal does not have jurisdiction). 26 Whilst there may be not any need to do so, I shall briefly refer to what was argued on the question of jurisdiction. The court has been referred to various authorities (including Collings). It is alleged that the plaintiff retained the first defendant (who are surveyors and engineers) to conduct an investigation of subsurface conditions of the third defendant's land and to report on those conditions. The first defendant was retained on 1 June 1999. A report was provided prior to the making of the building contract. An invoice in the sum of $140 was issued for soil testing services. It was dated 11 June 1999. The building contract was not even made until some weeks later. 27 There is dispute between the parties as to whether or not the invoice was placed in evidence before the Tribunal. 28 Although no such finding appears to have been made, if the invoice was before the Tribunal, it would have been open to the Tribunal to find lack of jurisdiction on the basis that the matter had been excluded by the Home Building Regulation 1997 (on the basis that the reasonable market cost of the labour did not exceed $200). Whilst there may be contest between the parties as to the inferences that may be drawn from the material, it was not a case of no evidence. 29 Be that as it may, if there be any need to express a view on the matter, it seems to me that the Tribunal correctly applied what had been said in Collings to the particular circumstances of the case. I do not see the case as being distinguishable. Accordingly, this Court would not be satisfied that the Tribunal erred in finding lack of jurisdiction on this ground. 30 Further, whilst little has been said on the matter, I am not satisfied that the decision to award certain of the costs on an indemnity basis should be disturbed. 31 In the circumstances, I am not satisfied that there was any error in the exercise of the statutory discretion to make the order awarding costs in favour of the first defendant. 32 I now turn to the costs determination made in favour of the third defendant. An order is sought that the third defendant pay inter alia the plaintiff's costs of the proceedings before the Tribunal. Before proceeding any further, I should observe that the plaintiff did not seek an order for costs against the third defendant in the Tribunal. On various occasions, the Tribunal was informed that no costs order was being sought against the third defendant. Despite that, the plaintiff is presently seeking an order that the third defendant pay inter alia its costs before the Tribunal (a situation which arose from amendments to the process). 33 It should also be observed that the third defendant sought before the Tribunal a limited order only. She was merely asking for costs of the day (the day of 14 April 2003). The amount awarded has to be relatively modest and the costs of an appeal to this Court on the question are manifestly disproportionate. 34 As I understand the reasons, the thrust of the decision was that the plaintiff's delay in responding to the Collings decision and in approaching the other parties seeking consent to a transfer of the proceedings to the District Court saw the third defendant incurring the costs of that day (including the costs of counsel). The third defendant was entitled to oppose and was successful in opposing the transfer application made by the plaintiff. She incurred costs in this exercise. The subsequent change of mind seems to be due to other matters (inter alia the plaintiff raising jurisdictional problems during the conduct of the third defendant's part heard case). I should add that the question of whether or not the plaintiff should have given earlier consent was taken into account by the Tribunal. Further it needs to be observed that what happened in the District Court has no relevance to the Tribunal's discretionary exercise. 35 In the circumstances, I am not satisfied that there was error in the exercise of the discretion to make the order awarding the costs of the day in favour of the third defendant. 36 I should also mention one further problem confronting the plaintiff. An appeal only lies to this Court where the Tribunal decides a question with respect to a matter of law. The proper construction of this provision has been raised in other cases. As I understand the position, the question of construction remains at large. There is a view that s 67 provides a remedy of limited nature (narrower than error of law). 37 The question was not fully argued in this case. On what was argued, I remain unsatisfied that an appeal on a question of costs only is open pursuant to s 67. 38 In the circumstances, the appeal fails. The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings The exhibits may be returned. ********** Last Modified: 11/25/2003 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.