Mara Pty Ltd v Arlington Property Group Pty Ltd [2014] NSWCATCD 70

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mara Pty Ltd v Arlington Property Group Pty Ltd [2014] NSWCATCD 70 Hearing dates: Decided on the papers Decision date: 07 May 2014 Before: R F Buckley, Senior Member Decision: Each party to the proceedings is to pay its own costs. Catchwords: Exceptional circumstances Legislation Cited: Consumer Trader and Tenancy Tribunal Act 2001 (repealed) Consumer Trader and Tenancy Regulation 2009 Uniform Civil Procedure Rules 2005 Cases Cited: Oshlack v Richmond RIver Council [1998] HCA 11 Kent v Wilson [2000] VSC98 Squires v Gosford Timber Flooring and Supplies (Home Building) [2006] NSW CTTT 363 R v Kelly [1999] 3WLR 1100 Category: Principal judgment Parties: Mara Pty Ltd (applicant) Arlington Property Group Pty Ltd (respondent) Representation: Ashurst Australia (applicant) Shaw Reynolds Lawyers (respondent) File Number(s): HB 13/29433 Publication restriction: Unrestricted

reasons for decision APPLICATION 1.The original application was the subject of orders and reasons published on 23 December 2013. In accordance with an order of the Tribunal made on the same date, the parties filed and served submissions on the issue of costs. 2.The substantive application, the subject of this costs decision, was lodged by the applicant pursuant to the terms of s 43(2) of the Consumer Trader and Tenancy Tribunal Act 2001 (CTTTA). Such application filed 29 May 2013 sought an order for payment of an amount of $17,420.00 "plus further damage to be assessed". 3.Section 43 of the CTTTA is in the following terms:- 43 Enforcement of certain Tribunal orders (1) If the Tribunal makes an order in relation to any proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal. (2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with. (3) The provisions of this Act apply to a notice lodged in accordance with subsection (2) as if the notice were an application made in accordance with section 24. (4) When proceedings have been renewed in accordance with this section, the Tribunal: (a) may make any other appropriate order under this Act as it could have made when the matter was originally determined, or (b) may refuse to make such an order. (5) This section does not apply if the operation of an order has been suspended. (6) A notice under this section must be in the form prescribed by the regulations. 4.As noted in s 24 of the CTTTA, as referred to in s 43(3), the substantive renewal proceeding is for all purposes a new application. 5.Relevantly, s 53 of the CTTTA is in the following terms:- 53 Costs (1) Subject to this section and the regulations, the parties in any proceedings are to pay their own costs. (2) The Tribunal may, in accordance with the regulations, award costs in relation to any proceedings. (3) If costs are to be awarded by the Tribunal in accordance with the regulations, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (4) In this section, "costs" includes the costs of, or incidental to, proceedings. (5) This section does not apply in relation to proceedings under the Strata Schemes Management Act 1996 or the Community Land Management Act 1989 6.It should be noted at this point that sub-section 53(1) of the CTTTA provides a different "starting point" than does Reg. 42.1 of the Uniform Civil Procedure Rules 2005 which is in the following terms:- 42.1 General rule that costs follow the event (cf SCR Part 52A, rule 11) Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs. 7.The determination of any costs entitlement does not follow the formula outlined in the UCPR as frequently enunciated by way of a general rule in Oshlack v Richmond River Council [1998] HCA 11 at [67 - 69] per comments of McHugh J with whom Brennan CJ agreed. 8.The legislative basis for awarding costs in the Tribunal is the outline set out in s 53 plus a consideration of the criteria imposed by Reg. 20 of the Consumer Trader & Tenancy Tribunal Regulation 2009 which is in the following terms: 20 Costs generally (1) This clause applies to the awarding of costs by the Tribunal as provided by section 53 of the Act. (2) The Tribunal may award costs in relation to proceedings in respect of which the amount claimed or in dispute is not more than $10,000, or in respect of which no amount is claimed or in dispute, only if the Tribunal is satisfied that there are exceptional circumstances that warrant the awarding of costs. (3) In any proceedings in respect of which the amount claimed or in dispute is more than $10,000 but not more than $30,000, the Tribunal may award costs in relation to the proceedings only if: (a) the Tribunal is satisfied that there are exceptional circumstances that warrant the awarding of costs, or (b) the Tribunal has made an order under section 30 (2) of the Act in relation to the proceedings. (4) In any proceedings in respect of which the amount claimed or in dispute is more than $30,000, the Tribunal may award costs in relation to the proceedings in such circumstances as it thinks fit. (5) Despite any other provision of this clause, the Tribunal may order: (a) that the costs of proceedings on an application for rehearing of a matter are, if the applicant fails to attend the hearing of the application, to be paid wholly or in part by the applicant, or (b) that the costs of any proceedings that the Tribunal considers to be frivolous, vexatious, misconceived or lacking in substance, or that otherwise should not be heard or proceeded with, be paid wholly or in part by the person who instituted the proceedings. (6) The amount of any costs under subclause (5) is to be substantiated in accordance with directions given by the Chairperson or, in the absence of such directions, in such manner as the Tribunal thinks fit." SUBMISSIONS 9.Counsel for the applicant in his submissions asserts that the Tribunal has a power to award costs in relation to any proceedings as a matter of discretion, and further that in accordance with Reg. 20(4) of the Regulation submits that "The Tribunal may award costs in relation to proceedings in such circumstances as it saw fit". 10.The submission made on behalf of the applicant proceeds on the reasoning that as it was appropriate for the Tribunal sitting in the substantive initial proceedings HB 11/52038 to make an order for costs, it is therefore, "appropriate for the Tribunal to extend the costs order to encompass the renewal application for the simple reason that the renewal application is part of the proceedings as a whole and only became necessary because the applicant had to seek enforcement of the Tribunal's orders as a consequence of the respondent's default". 11.The respondent on the other hand argues in its submissions that pursuant to s 43(3) of the CTTTA and by virtue of s.24 of the same legislation, the renewal proceeding is to be dealt with as it was an originating process. I accept this submission. To do otherwise would be to ignore the operative effect of s 43(3) of the CTTTA. The amount sought as noted above at the filing of the renewal application was for $17,420.00 "plus further damage to be assessed". Even accepting the applicant's revised claim, the amount that was finally sought did not bring the proceedings into the evaluative criteria set out in Reg. 20(4), the amount claimed or in dispute was certainly not more than $30,000.00. 12.The test therefore is as submitted on behalf of the respondent, that is that for the Tribunal to award costs and go beyond the "starting point" of s 53(1) of the CTTTA, it must be "satisfied that there are exceptional circumstances that warrant the award of costs ..." (emphasis added) 13.I have had regard to the dicta relied upon by the respondent in cases such as Kent v Wilson [2000] VSC 98, Squires v Gosford Timber Flooring & Supplies (Home Building) [2006] NSW CTTT 363 and also the comments made by Bingham LCJ, Forbes and Harrison JJ in R v Kelly [1999] 3 WLR 1100 at which it was said:- "We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered." 14.The applicant's submissions are drawn referrable to an incorrect criteria and do not address the issue raised in Reg. 20(3) of the Regulation. The Tribunal has to be satisfied that exceptional circumstances exist. I have considered the factual and legal circumstances surrounding the renewal application. There was in my view an absence of any legal or factual complexity from which a conclusion could be drawn that "exceptional circumstances" existed to ground an order for costs. By way of re-enforcement, I have revisited the substantive and particularly refer to my comments at paragraphs 13, 14, 17 and 18 of my Reasons dated 23 December 2013, which clearly implicates the conduct of both parties as being causative of the delay in the respondent falling outside of the timetable prescribed in the orders made in HB 11/52038. 15.For the reasons set out above, it is appropriate in the circumstances that an order be made that each party pay its own costs of the renewal proceedings in HB 13/29433. (signed) R F Buckley Senior Member Civil and Administrative Tribunal of New South Wales 7 May 2014 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