District Court New South Wales Medium Neutral Citation: Khan v Mohammed [2013] NSWDC 293 Hearing dates: 30, 31 July, 1, 2 August and 3 September 2013 Decision date: 03 September 2013 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) The proceedings be transferred to the Consumer, Trader and Tenancy Tribunal and to continue before the Tribunal as if the proceedings had been instituted in the Tribunal, in accordance with section 23(2) of the Consumer, Trader and Tenancy Tribunal Act 2001. (2) 50 per cent of the plaintiff's costs of the 3 days of hearing, the defendant's costs of the 3 days of hearing and the residue of the costs of these proceedings be costs of the transferred proceedings before the Tribunal. Catchwords: CONTRACT - similar issues in proceedings in Consumer, Trader and Tenancy Tribunal - proceedings dismissed - jurisdiction of District Court - whether Tribunal proceedings withdrawn - Anshun estoppel - costs Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001, s 22, s 23, s 28 Cases Cited: Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622 Texts Cited: Ritchie's Uniform Civil Procedure NSW Category: Procedural and other rulings Parties: Aiyaz Khan (plaintiff) Zahed Hussain Mohammed (defendant) Representation: Mr C Robinson (plaintiff) Nr F Santisi (defendant) Platinum Lawyers (plaintiff) NA Lawyers (defendant) File Number(s): 2012/94909 Publication restriction: No ex tempore Judgment 1Aiyaz Khan is a builder who entered into a contract with the defendant owner of property to do building work. Mr Khan commenced proceedings in 2012 in this court for a liquidated sum for work done and materials provided. The defendant resists the claim on various grounds, including an issue of jurisdiction. 2The proceedings before me raise issues that largely, but not wholly, were raised in an application before the Consumer, Trader and Tenancy Tribunal ("the Tribunal") in an application filed on 27 June 2011. The Tribunal dismissed that application on 27 October 2011 for reasons set out in a notice of order of that date. In summary, those reasons concern the non-appearance of the applicant at the appointed starting time without explanation, and perhaps the failure of the applicant to file and serve evidence in accordance with directions despite reminder by the respondent's solicitors. 3Section 22(3) of the Consumer, Trader and Tenancy Tribunal Act 2001 ("the Act") provides: "(3) If, at the time when an application was made to the Tribunal in accordance with this Act, no issue arising under the application was the subject of a dispute in proceedings pending before a court, a court has no jurisdiction to hear or determine such an issue." 4If s 22(3) applied, this Court would lack jurisdiction to determine the dispute. However, s 22(3) does not apply in the circumstances set out in s 22(4): "Subsection (3) ceases to apply to the extent to which the application concerned is dismissed for want of jurisdiction or withdrawn." 5No issue of a want of jurisdiction in the Tribunal arises. The application of subsection (4) to the present proceedings depends upon whether the proceedings in the Tribunal were "withdrawn". 6Section 28(5) specifies the procedure of the Tribunal generally, including that the Tribunal: "(g) may dismiss any proceedings if the applicant fails to attend a hearing, and (h) must, if requested by the applicant, allow the applicant to withdraw the application..." 7These provisions indicate that dismissal for failure to attend a hearing is something different from withdrawing an application. 8The converse circumstance to s 22(3), where proceedings have been commenced in a court and then subsequently an application is instituted in a Tribunal, is dealt with in s 22(7) of the Act, which states: "(7) If, at the time when an application is made to the Tribunal in accordance with this Act, an issue arising under the application was the subject of a dispute in proceedings pending before a court, the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue." 9Similarly, that provision does not apply in the circumstances set out in subsection (8) which provides: "(8) Subsection (7) ceases to apply to the extent to which the proceedings concerned are dismissed or quashed by the court, or by another court, for want of jurisdiction or without deciding the issue on its merits, or withdrawn." 10Like s 28(5)(g) and (h), this provision also indicates a difference between proceedings being "dismissed ... without deciding the issue on its merits" and when proceedings are "withdrawn". The rule of statutory construction described by the Latin maxim expressio unius est exclusio alterius supports the argument that the circumstance "[dismissal] ... without deciding the issue on its merits" is not a circumstance within the meaning of the word "withdrawn" in s 22(4). 11In addition to these two statutory provisions, there is also the meaning of the word "withdrawn" which, in my view, does not ordinarily embrace the concept of a dismissal, at least a dismissal for failure to attend a hearing. The former involves a decision by the applicant, the latter a decision by the Tribunal. 12In those circumstances it seems to me, and the parties did not demur from this view, that I have no jurisdiction to hear and determine those matters that were part of the application before the Tribunal. The proceedings were not withdrawn or dismissed for want of jurisdiction, so s 22(3) operates to deny jurisdiction. 13I noted earlier that not all of the issues in the present proceedings are canvassed within the Tribunal application. Section 22(6) of the Act provides: "(6) For the purposes of subsection (3), an issue arises under an application made to the Tribunal only if the existence of the issue is shown in the applicant's claim or is recorded in the record made by the Tribunal in accordance with this Act." 14I have reviewed the issues in these proceedings and those in the Tribunal. In both cases the plaintiff before me sought to be paid for a number of items of alleged work. It seemed to me that of the 14 items alleged, nine of those were expressly sought in the Tribunal application and five were not, and both the parties before me accept this to be so. Thus, I have jurisdiction to hear and determine five of the matters but not the other nine. 15The matter is further complicated because the defendant also has previously made application to the Tribunal in respect of a dispute with the plaintiff, and has had that dispute determined by the Tribunal on its merits. The defendant maintains as one of its defences that the plaintiff is unable to maintain his claim because of the principles of Anshun estoppel. 16In all these circumstances, both parties seek that the proceedings before me be transferred to the Tribunal rather than have me determine a minor part of the issues between the parties. I see the merit in this approach. 17Section 23 of the Act contains a power for transfer of proceedings between the court and the Tribunal. Section 23(2) provides: "(2) If the parties in any proceedings that have been instituted in a court so agree, or if the court of its own motion or on the application of a party so directs, the proceedings are, if the proceedings relate to a matter for which the Tribunal has jurisdiction: (a) to be transferred to the Tribunal in accordance with the regulations, and (b) to continue before the Tribunal as if the proceedings had been instituted in the Tribunal." 18I note that whilst s 22(3) precludes me having jurisdiction "to hear and determine" an issue it does not impact upon my jurisdiction to transfer proceedings in accordance with s 23. 19Accordingly, I am of the view that I am empowered under s 23 to transfer all of the proceedings, that is, not only the five issues that were not part of the application of the plaintiff in the Tribunal that was formally dismissed but all 14 issues. I note that the transferral of the proceedings operates such that the proceedings would continue, "as if the proceedings had been instituted in the Tribunal". It follows that nothing I have said in this application should be taken to reflect adversely or favourably on the position of either the plaintiff or the defendant in respect of any matter to be ventilated before the Tribunal, including the impact or otherwise of any previous decision of the Tribunal on the matters remaining in dispute between the parties. 20Accordingly, I propose to order that the proceedings be transferred to the Tribunal and to continue before the Tribunal as if the proceedings had been instituted in the Tribunal, in accordance with s 23 of the Act. 21In respect of costs, the defendant seeks the costs of three days said to be wasted by reason of the transfer of the proceedings. On the other hand, the plaintiff seeks an order that the plaintiff's costs be costs in the Tribunal proceedings on the basis of submitted delinquencies by the defendant. 22I do not think there is any merit in the plaintiff's assertion that the defendant should be subject to an adverse costs order by reason of asserted delinquencies. The defendant was brought to this court by the plaintiff, and the plaintiff has not obtained the relief he sought, or any analogous relief. 23As to the entitlement of the defendant to obtain a costs order, I must take into account the circumstance that neither party raised the jurisdictional questions arising out of s 22. It is true that the defendant raised the Anshun estoppel argument early in the proceedings before me but that is not the same point as whether I have jurisdiction to hear and determine the issues including the Anshun estoppel issue. 24Generally speaking, when issues are resolved by means of an agreement but the parties are unable to agree on costs it is rarely appropriate to determine costs issues by a close investigation of the merits of the respective claims. See, for example, Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622 and other decisions that have referred to Lai Qin referred to in Ritchie's Uniform Civil Procedure NSW at [42.1.55]. 25Those cases are, in the main, concerned with an agreement to finally determine proceedings unlike this case where there is an agreement that the proceedings be transferred to the Tribunal. 26I also take into account the fact that a number of the issues in the proceedings before me are properly within my jurisdiction to determine. That is not to suggest that they would be determined favourably to one party or the other, or that the Anshun estoppel argument had no application. 27It seems that there are some costs that will have been wasted by reason of the transfer. Further, in the plaintiff bears the principal obligation to ensure that proceedings are commenced in a tribunal that has jurisdiction. 28On the other hand, I am not persuaded that all of the costs are wasted or should be the responsibility of the plaintiff. 29In the circumstances, I propose to make what might be seen to be a somewhat novel order of ordering that 50 per cent of the plaintiff's costs of the three days of hearing, and the defendant's costs of the three days of hearing, and the residue of the costs of the proceedings of either party be costs in the proceedings before the Tribunal. This will likely have the result that if the defendant is successful in obtaining a costs order for the proceedings in the Tribunal, it will recover its costs, and if the plaintiff is successful in the Tribunal, it will recover its costs save for 50 per cent of the costs of the three days. It is of course entirely a matter for the Tribunal whether it makes any, and if so what, costs order. 30Accordingly, the orders of the Court shall be: (1)The proceedings be transferred to the Consumer, Trader and Tenancy Tribunal and to continue before the Tribunal as if the proceedings had been instituted in the Tribunal, in accordance with section 23(2) of the Consumer, Trader and Tenancy Tribunal Act 2001. (2)50 per cent of the plaintiff's costs of the 3 days of hearing, the defendant's costs of the 3 days of hearing and the residue of the costs of these proceedings be costs of the transferred proceedings before the Tribunal. ********** 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: 04 March 2014