Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Draybi Bros Pty Ltd v Diab, Maklouf and Dib Draybi Bros Pty Ltd v Diab, Maklouf, Dib and Chahrouk [2014] NSWCATCD 99 Hearing dates: decision on the papers Decision date: 17 June 2014 Before: M Harrowell, Principal Member Decision: 1. That the applicant pay to the respondents two thirds of the respondents costs of the application to transfer, such costs to be as agreed or assessed immediately. 2. That the applicant pay to the respondents the respondents' costs incurred in the proceedings before the Tribunal relating to the preparation of points of defence and evidence being costs wasted by reason of the transfer of the proceedings to the District Court of New South Wales, the determination of such costs to be as agreed or assessed at the conclusion of the proceedings. Catchwords: Costs, discretion Legislation Cited: Consumer Trader and Tenancy Tribunal Act 2001, s 53 Home Building Act 1989, s 48K Category: Principal judgment Parties: Draybi Bros Pty Ltd Diab, Maklouf, Dib, Chahrouk Representation: Mr Carter for the applicant instructed by Doyles Construction Lawyers Mr Reynolds for Mssrs Diab, Dib and Chahrouk instructed by Ray Wehbe & Co File Number(s): HB 10/47685 and HB 10/47969 Publication restriction: No restriction reasons for decision Introduction 1.On 31 January 2014 the Tribunal made orders to transfer applications HB 10/47969 and HB 10/47685 to the District Court of New South Wales pursuant to section 23 of the Consumer Trader and Tenancy Tribunal Act, 2001 (CTTT Act). In doing so, the Tribunal made directions to enable either party to make an application for costs in connection with the application to transfer the proceedings. 2.By letter dated 17 February 2014 the respondents, Diab, Dib and Chahrouk made an application for costs which was supported by an affidavit of the respondents' solicitor, Mr Wehbe sworn 22 October 2012. The respondents also filed submissions dated 14 February 2014. 3.The application by the respondents in each of the proceedings was that the applicant pay the respondents' costs of the proceedings and the motions before the Tribunal. 4.The applicant filed submissions in reply, in short, submitting that no order for costs should be made in favour of the respondents but rather that costs should follow the final determination of the disputes and that alternatively an order for a portion of costs should be made in the applicant's favour. 5.The respondents filed submissions in reply to the applicant submissions pursuant to directions made by the Tribunal on 27 March 2014. The Decision to Transfer 6.The orders to transfer the applications to the District Court of New South Wales were made in accordance with reasons for decision published 31 January 2014 (Reasons). 7.The application to transfer the proceedings to the District Court was primarily based on the respondent's contention that the Tribunal did not have jurisdiction to hear a claim involving an equitable defence by way of estoppel. 8.In the course of considering this application, the Tribunal also identified other matters which would need to be considered, including whether or not the Tribunal had jurisdiction to hear claims for breach of duty of care and/or claims under the Trade Practices Act 1974. 9.In relation to the primary basis for the application to transfer, namely that the Tribunal did not have jurisdiction to hear a defence by way of equitable estoppel, complex questions arose by reason of conflicting authority in the Supreme Court of New South Wales on the question of whether or not the Tribunal was a court for the purpose of the Law Reform (Law and Equity) Act, 1972 and whether or not a defence based on equitable or promissory estoppel was properly to be characterised as a claim for equitable relief which the Tribunal does not have jurisdiction to grant. The Tribunal determined that it did in fact have jurisdiction to determine proceedings involving a defence by way of equitable estoppel. Therefore, the application to transfer the proceedings on this basis failed. 10.However, the Tribunal concluded that it did not have jurisdiction to hear the applicant's claims in negligence because they were made pursuant to applications filed outside the time provided in section 48K (3) of the Home Building Act 1989 (HBA) and therefore the Tribunal did not have jurisdiction. While the Tribunal did not have jurisdiction, the Tribunal determined that the claims in negligence appeared to have been brought within the general limitation period of 6 years and were therefore claims maintainable at law which could be pursued in a court of competent jurisdiction. Accordingly, the Tribunal determined to transfer the proceedings to the District Court of New South Wales. The Respondents' submissions 11.The respondents submitted that the applicant had opposed in its entirety the respondents' application to transfer the proceedings to a court. The applicant had failed in this challenge and the respondents were "practically successful in relation to the 'event'". The respondents say that the applicant had been litigating its claims for many years in a forum which lacked jurisdiction, a matter vindicated by the Tribunal making the transfer orders and that the respondents had provided ample notice of the issue and incurred significant costs pursuing the application to transfer by reason of the applicant refusing to consent to the transfer. The respondents say the applicant has not identified any argument that on a reasonable view could have led the applicant to believe that the litigation was commenced within 3 years after the date of last supply, that the Tribunal lacked jurisdiction under section 48K (3) and the applicant was therefore unreasonable in resisting orders for transfer. Further, the applicant's change of position on the number of issues exacerbated the costs which were incurred by the parties. 12.The respondents also point to the conduct of the proceedings in March 2012 and that the respondents raise the issue of the applications being out of time and that they should be transferred to the District Court so the applicant could pursue its claims in tort. In this regard the respondents rely on the submissions made by the Counsel, Mr Reynolds at the directions hearing on 9 March 2012, particularly where Mr Reynolds said "it is quite clear that there is no jurisdiction to deal with significant aspects of the claim" (having previously mentioned the tort claim in negligence being one for which the Tribunal had no jurisdiction). 13.The respondents say that when the applications to transfer were being heard by the Tribunal on 9 October 2012 the applicant indicated that it would accede to the matters being transferred to the Supreme Court, although costs remained in dispute. Thereafter the matter was listed for hearing for further argument on the question of whether the Tribunal had jurisdiction to hear the defence by way of equitable estoppel, which was listed on 23 May 2013 following earlier directions hearings at which the other issues referred to above were raised by the Tribunal. 14.Having set out the principles in relation to which an award for costs should be made, the respondents submitted that they had achieved practical success although they had failed in relation to discrete issues. The respondents contend they consistently maintained a position that the proceedings were outside the Tribunal's jurisdiction by virtue of section 48K (3) of the HBA. The respondents contended position was vindicated by the Tribunal's decision that it lacked jurisdiction because of section 48K (3) of the HBA. 15.While the respondents sought to have the proceedings transferred to the Supreme Court of New South Wales, the respondents say the District Court was an appropriate court and was within the ambit of the respondents' motion which was opposed by the applicant. 16.In relation to transfer based on the defence of equitable estoppel, the respondents submitted that "it was validly raised given the inconsistent authorities" and the point did not affect the degree of practical success of the respondents in that the determination only affected whether the matter should go to the Supreme Court or District Court. 17.Further, the respondents contend that, as a matter of fairness, there is no good reason why the respondent should not have their costs. In essence, the respondents say that they were successful in contending that the applicant had commenced proceedings in a forum that did not have any jurisdiction. Further, by reason of the conclusions the Tribunal reached concerning section 48K (3) of the HBA and having regard to the fact that the applicant never contended that either proceedings were commenced within 3 years of the dates of last supply in respect of each application, no real argument was ever raised by the applicant to resist the claim that the Tribunal had no jurisdiction. 18.Finally, the respondents contended that there are special circumstances within the meaning of section 60 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) that warrants a costs order in their favour. Applicant's submissions in reply 19.In reply, the applicant contends that the preliminary view expressed by the Tribunal was appropriate, namely that each party had had some success and therefore costs of the application should follow the event. 20.The applicant points to the fact that the respondents originally sought dismissal of the applicant's claims either summarily or by reason of the Tribunal determining it did not have jurisdiction in respect of claims having regard to the time limits provided for in section 48K of the HBA. The applicant says that transfer of the proceedings to a court was alternative relief sought if the primary applications failed. 21.The applicant says that the respondents' primary application did in fact fail, that is the proceedings were not dismissed. 22.The applicant then says: "It is submitted that the decision of the Tribunal is not limited to this particular issue of equitable estoppel only. Rather, the transfer order appears to be premised upon the basis that the Applicant's claim in general, while out of time in the Tribunal in relation to statutory warranties only, are not so out of time if dealt with in proceedings before the District Court. The fact there is an equitable defence now pleaded is simply ancillary to the reasons for the transfer taking place." 23.The applicant continues that the success of the respondents to have the proceedings transferred is only a portion of the third order and that a significant amount of time and written submissions was taken up in dealing with claims for which the respondents were unsuccessful. 24.In the circumstances, the applicant submits that it would be an unwarranted burden at this stage of the proceedings for the Tribunal to make an assessment based on issues in the proceedings and rather costs should fall for determination following the final hearing. The applicant also submits that this is consistent with section 60 (1) of the NCAT Act, namely that each party is to bear its own cost of the proceedings before the Tribunal. 25.As an alternative position, the applicant contends that the respondents should be ordered to pay two thirds of the applicant's costs of the applications. This is because the applicant contends the respondents wholly failed to achieve the main thrust of the application, namely dismissal of the various proceedings based on Limitation issues. Such an approach, says the applicant, is founded upon special circumstances under section 60 (3) (d) or (g) of the NCAT Act. 26.Finally, the applicant submits that an order for costs might be made on the basis of issues and if this is done apportionment might be made in a manner which may not be capable of mathematical precision but rather depends on matters of both impression and evaluation. 27.In reply to the respondents submissions, the applicant says that section 48K (3) of the HBA does not bar proceedings brought for breach of contract in which the statutory warranty is pleaded if they are commenced more than 3 years from the date of breach. The applicant contends that section 48 K (3) "operates to exclude the Tribunal from determining such claims. It does not limit either the District Court or Supreme Court from hearing such matters". The applicant says that the claims for breach of statutory warranty are not barred. Rather, all that has occurred is that the Tribunal has declined to hear the claims for breach of statutory warranty because of the 3 year time limit set out in section 48K (3). 28.Accordingly, the applicant says that the District Court will be able to determine such claims as it will claims for negligence and for statutory relief under the Trade Practices Act. 29.Finally, the applicant points to the fact that the challenge to the jurisdiction was made late, more than 2 years after the proceedings were commenced and the equitable defence was not in fact formulated until the Tribunal directed the respondents to do so during the course of the hearing of the applications to transfer. Therefore the consent was not unreasonably withheld by the applicant and the costs order originally proposed by the Tribunal in the Reasons should remain. Respondents' submissions in reply 30.The respondents submit that the fact the applications were not dismissed is not a matter which should disentitle the respondents to their costs. The challenge was to the Tribunal's jurisdiction, dismissal or transfer being alternative forms of relief. The order made by the Tribunal was within the scope of the application which was to dismiss or transfer. 31.The respondents say that the insistence of the applicant to pursue all of its claims within the Tribunal forced the respondents to file the motion. All of the costs incurred in the proceedings and the costs of the motion stemmed from the applicant's incorrect insistence as to the jurisdiction of the Tribunal and none of the cost would have been incurred if the applicant had simply filed in the correct forum or acceded to the transfer orders. Further, by reason of the transfer there is a need for the parties to plead the matter in conformance with the Uniform Civil Procedures Rules and the evidence will need to be reviewed and re-drafted to ensure that it complies with the rules of evidence. 32.The respondents also submitted that the transfer application was not solely based on the equitable estoppel defence as the applicant contends. Rather, section 48K jurisdictional issues were raised which the respondents also sought to have determined by the Tribunal. 33.As to the applicant's submission that the respondents pay two thirds of the applicant's costs, the respondents say they successfully established that the Tribunal did not have jurisdiction to hear part of the claim because of section 48K of the HBA. The fact that one of the contingent was unsuccessful did not mean the application to dismiss or transfer the proceedings failed. 34.The respondents also note that the applicant originally agreed to the transfer on the basis that the Tribunal had no jurisdiction in connection with the equitable estoppel claim, but subsequently withdrew that consent. The respondents submit that it was only at this stage where details of the equitable defence were sought. Therefore, the submission by the applicant that the formulation of the defence was late should be rejected. 35.Finally, while the respondents accept that the District Court could deal with all issues of costs, the respondents submit that the Tribunal has now received detailed submissions on the issue and should make a ruling. Decision 36.These applications were commenced in the Consumer Trader and Tenancy Tribunal. Because they had not been finally determined, they are pending proceedings to be dealt with in accordance with clause 7 of Schedule 1 of the NCAT Act. Clause 7 (3) provides as follows: (3) For the purposes of subclauses (1) and (2): (a)NCAT has and may exercise all the functions that the relevant existing tribunal had immediately before its abolition, and (b)the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted continue to apply. 37.The decision of the Civil and Administrative Tribunal Appeal Panel in NSW Land and Housing Corporation v Diab [2014] NSWCATAP 8 at [27] makes clear that the legislation applicable at the time these proceedings were commenced applies in respect of determinations made in these proceedings. Accordingly, the issue of costs is to be determined in accordance with the provisions of the CTTT Act. 38.Section 53 of the CTTT Act provides: 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. 39.Regulation 20 of the Consumer Trader and Tenancy Tribunal Regulation 2009 makes provision in connection with costs payable under section 53 as follows: 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. 40.Each of the present applications which are to be transferred to the District Court of New South Wales are claims where the amount in dispute is more than $30,000.00. Therefore Regulation 20(4) applies and the Tribunal has jurisdiction to award costs in such circumstances as it thinks fit, that is a general power exists to award costs not requiring special circumstances as might be applicable under the NCAT Act. 41.Where a party has been successful in an application before a court or tribunal, the ordinary rule is that costs follow the event. This rule may be departed from where, for instance, a large amount of time has been taken up at a hearing dealing with particular issues on which the otherwise successful party did not win. It is sufficient to note each of the parties have referred to various authorities on this aspect of the law, the effect of the authorities being that issues may be separated where appropriate and orders apportioning costs can be made as part of the proper exercise of the discretion in making any costs order. 42.The respondents say they should have the cost of the proceedings before the Tribunal and the costs of the motions to transfer. In relation to the cost of the proceedings before the Tribunal, the respondents say that by reason of the proceedings being transferred to the District Court, significant cost will be wasted, pleadings will need to be prepared in substitution for points of claim and points of defence and evidence will need to be reformulated in a manner so as to bring it into conformance with the rules of evidence which apply to proceedings in the court. In relation to the motions, while the respondents acknowledge the motions sought dismissal of the applications in the Tribunal, they say they alternatively sought orders for transfer to a court and having succeeded on these applications the respondents say they are properly entitled to the cost in accordance with the general rule. 43.In relation to the lack of jurisdiction of the Tribunal, the respondents say they had "consistently contended that the proceedings were out of the Tribunal's jurisdiction by virtue of section 48K (3) of the HBA": see submissions dated 14 February 2014 at para 27. 44.The submissions of the respondents appear based on the contention that all of the applicant's claims were outside the jurisdiction of the Tribunal because they were commenced more than 3 years after the last supply and that having raised this issue on numerous occasions the respondents' position that the Tribunal lacks jurisdiction has been vindicated. The respondents point to the fact that on 9 October 2012 Counsel for the respondents made clear that the Tribunal did not have jurisdiction to hear the tort claim in negligence, having raised the issue with the applicant earlier in time. 45.The respondents say that while they were unsuccessful in relation to the equitable defence point, this issue was only one of the reasons why the Tribunal did not have jurisdiction and the proceedings should be transferred. 46.Insofar as the respondents suggest that the Tribunal concluded in the Reasons that the jurisdiction of the Tribunal in respect of all claims which form part of the applications are regulated by section 48 K (3) of the HBA, such a submission is incorrect. At [126] of the Reasons the Tribunal said: "... The Tribunal has jurisdiction to hear a claim for breach of statutory warranty if brought within a period of 7 years (see sections 18E and 48K (7)). If the time to bring such a claim had expired, neither the Tribunal nor a court has power to make an award of damages and so the claim should properly be dismissed because there is no entitlement to bring such a claim beyond the period of 7 years specified in s18E of the Home Building Act. On the other hand, various limits apply to the Tribunal's jurisdiction to hear non-statutory warranty claims which do not coincide with the general law limitation periods that are applicable to court proceedings. For example, a building claim brought in the Tribunal relating to building goods or services that are required under a contract to be supplied to a claimant within a specified period can be brought in the Tribunal if lodged not more than 3 years after the date on which the supply was required under the contract, whereas a court would ordinarily have 6 years from the date of any breach of contract to hear and determine such claim. In these circumstances, the lack of jurisdiction of the Tribunal may make it appropriate for proceedings to be transferred to a court..." 47.The Tribunal then set out in the Reasons that the jurisdiction of the Tribunal to hear a claim in negligence in the present circumstances was regulated by section 48K (3) of the HBA and therefore outside the Tribunal's jurisdiction. 48.That conclusion related to the particular claim in negligence, not that section 48K(3) applied to all claims relating to the supply of goods and services under a contract to a claimant. 49.In Owners SP 69050 v Glenzeil Pty Ltd (Home Building) [2013] NSWCTTT 17 the Tribunal said: 160."Subsections (3), (4), (6) and (7) provide jurisdictional limits in respect of: a.a claim by a person to whom or for whom the goods and services were originally supplied: see 48K(3); b.a claim under a contract requiring the supply to be made on or by a specified date or within a specified period is: see section 48K(4); c.a claim under a contract of insurance required to be entered into under the Act: see subsection 48K(6); and d.a claim for breach of an implied statutory warranty see section 48K(7). 160.Each of these subsections provides jurisdictional limits to claims which may arise from breach of a contract for the supply of goods and services (or insurance claims arising from that breach). The claim as defined in each subsection may be a claim "relating to a contract for supply of goods and services" within the meaning of subsection 48K(8)(a), however in these circumstances of overlap, subsections (3), (4), (6) and (7) apply to the exclusion of subsection (8). 161.While subsection (3) may have wider application than to claims relating to breach of a contract (because its application is determined by reference to the identity of the claimant to whom or for whom the goods and services were supplied, not the legal basis of the claim) that does not mean that the expression "relating to a contract for supply of goods and services" used in subsection 48K(8) (a) should be given a wider interpretation so as to include claims relating to a breach of a tortious duty (or for that matter claims not otherwise contractual). .... 170.Finally, my approach is consistent with that of Senior Member Meadows in Marks v Stafflair Pty Ltd [2012] NSWCTTT 199. At [32] Senior Member Meadows stated, in my view correctly, that subsections 48K(3) and 48K(8) (sic- the Senior Member was referring to sections 48K(3) and 48K(7)) needed to be given separate effect in determining whether the general grant of jurisdiction was otherwise limited. That is, each subsection limiting jurisdiction applies to the circumstances defined therein. 171.Accordingly, in my opinion s 48K(8) does not operate to exclude the jurisdiction of the Tribunal to hear and determine a claim for negligence brought by the Owners Corporation in circumstances where the Owners Corporation was not a party to the original contract for supply of building goods or services and where the building goods and services were not otherwise supplied to or for the Owners Corporation. " 50.The Tribunal is given general jurisdiction in building claims under section 48K(1). The subsections following Section 48K(1) limit that jurisdiction. The language in subsection 48K(3) would (absent the other subsections) suggest that the Tribunal would not have jurisdiction to hear any claim under a contract brought more than 3 years after the supply was made. This would mean that the Tribunal would not have jurisdiction to determine a claim for breach of a statutory warranty implied into a contract if brought more than three years after the supply was made under the contract into which the term was implied. However subsection 48K(7) (as it was at the relevant time) provides the Tribunal does have jurisdiction to hear such a claim if brought within 7 years. 51.As with subsection 48K(8), subsection 48K(3) does not operate to exclude the jurisdiction of the Tribunal for a particular claim where another section expressly provides a different time limit excluding jurisdiction. Rather, each claim made by a party needs to be analysed to determine which (if any) subsection operates to otherwise limit the general grant of jurisdiction to the Tribunal found in subsection 48K(1) of the HBA. 52.In the present case that means that section 48K (3) applies to limit the jurisdiction of the Tribunal in connection with a claim in negligence relating to the supply of goods or services to a period of 3 years from the date of supply. However, the Tribunal has jurisdiction to hear and determine a claim for breach of statutory warranty if brought within 7 years from when the works were completed as provided in section 48 K (7) (as it then was). 53.Where some of the claims are within jurisdiction and some claims are not within jurisdiction of the Tribunal, this will be a matter relevant to whether proceedings should be transferred to a court of competent jurisdiction or dismissed (at least in part). 54.Notwithstanding the comments concerning section 48K (3) and its application in the present circumstances, it is clear that the respondents had, since early 2012 raised with the applicant the issue of whether or not a claim in negligence could be brought in the Tribunal by reason of the jurisdictional limitation found in section 48K(3) of the HBA. 55.While the applicant suggests that this issue was raised at a late stage, ultimately it is for the applicant to consider what claims it wishes to make in the Tribunal and, as part of prosecuting those claims, it will be necessary for an applicant to satisfy the Tribunal that it has jurisdiction to hear and determine those claims. More often than not, the determination of any jurisdictional issues will require evidence to be provided to the respondents so that the appropriate factual enquiry can be made on the jurisdictional question. 56.If the consequence of the enquiry is that the Tribunal does not have jurisdiction then the proceedings need to be either transferred or dismissed. Where they are transferred to a court of competent jurisdiction this usually requires the claim to be re-pleaded in accordance with the applicable rules of court and for evidence to be recompiled in accordance with relevant rules. 57.The essence of the respondents' application for costs is that they have been successful in the application to transfer. In consequence the respondents say that the continuation of the proceedings in the District Court will result in various work undertaken in connection with preparation of the proceedings before the Tribunal being redone. The respondents say that the reasons advanced as to why the proceedings should be transferred to the District Court were not limited to the jurisdictional issue arising from the equitable defence but also from the claims the applicant brought in each application. 58.On the other hand, the applicant says that the jurisdictional issue arising from the equitable defence was an issue lost at the hearing of the applications to transfer and that this part of the application involved a substantial amount of the hearing time and that the applicant should therefore be paid two thirds of its costs of the application. 59.When the application was first listed before the Tribunal for hearing it is clear that the respondents' primary contention was that the Tribunal did not have jurisdiction to hear the equitable defence raised by the respondents. As reflected in the submissions and in the Reasons, there was a significant amount of time taken up in resolving this issue on which the respondents were unsuccessful. Further, the applicant initially supported the proposition that the Tribunal did not have jurisdiction to hear such a defence. Subsequently, the applicant's position changed. 60.However, the Tribunal having identified additional issues arising from claims made by the applicant required the parties to make submissions about whether or not the Tribunal had jurisdiction to determine the particular claims which the applicant sought to bring. The parties took opposing positions on these additional issues and in relation to the applicant's claim in negligence the respondents were successful in their challenge to the Tribunal's jurisdiction. 61.In these circumstances it can properly be concluded that each party has had some measure of success in relation to the applications, the respondents' applications ultimately succeeding because claims made by the applicant were not within the jurisdiction of the Tribunal to hear although matters raised by the respondents by way of equitable defence would otherwise have been matters which the Tribunal could have determined. 62.Further, as is evident from the Reasons, the authorities in relation to the issue of whether the equitable defence is a matter which can be determined by the Tribunal are somewhat contradictory and a determination of this issue (adverse to the respondents) took up a significant part of the time and cost in the application. 63.Considering these facts and the submissions made by each party, in the Tribunal's opinion it is appropriate that the respondents should have the cost of the application because they were successful. However, some allowance should be made for the fact that the respondents lost on an issue which involved significant time and cost to deal with. In weighing up the reduction that should be made in respect of this issue the Tribunal is of the opinion that it should also have regard to the fact that the applicant initially consented to the transfer application. 64.Finally, the Tribunal is of the opinion that it should also account for the fact that the proceedings were ultimately transferred because some of the claims which the applicant sought to advance were not within the jurisdiction of the Tribunal but could be brought in a court of competent jurisdiction. 65.Accepting the applicant's submission that precise mathematical calculation in the present circumstances is not possible, the Tribunal is satisfied that an order for costs should be made in favour of the respondents to the effect that the applicant pay to the respondents two thirds of the respondents costs of the application to transfer, such costs to be as agreed or assessed immediately. 66.In relation to the costs of the proceedings before the Tribunal, in the Tribunal's opinion it would be inappropriate to make an order that the applicant pays to the respondents all of their cost referable to the proceedings before the Tribunal. This is because all those costs would include costs of preparation of witness statements, expert reports and the like, which costs may not be wasted and will likely include work of benefit to the proceedings when they continue in the District Court. 67.On the other hand, it is clear that it will be necessary for the parties to properly plead their claims and otherwise take steps to bring evidence previously prepared into conformance with the rules applicable to proceedings in the District Court. 68.The complicating factor in the present circumstances is that the applications were originally filed in the Tribunal in 2010 however it seems that the jurisdictional issue concerning the applicant's claims was not raised until 2012. On one view it might be argued that less cost would have been wasted if the respondents had brought their application to challenge jurisdiction at an earlier time. The other view is that it is always necessary for the applicant to satisfy the Tribunal that it has jurisdiction to hear and determine the applicant's claim. 69.At the end of the day it is for an applicant to establish an entitlement in the Tribunal to the relief which it claims and to satisfy the Tribunal that it has jurisdiction to hear and determine such a claim. While the Tribunal has some concern about the time taken to bring the application to challenge jurisdiction, it was always open to the applicant to consider whether its claims were within the jurisdiction and to apply to transfer the proceedings if it was appropriate to do so. 70.In these circumstances, the Tribunal is satisfied that an order for costs ought to be made in favour of the respondents that the applicant pays the respondents' costs incurred in the proceedings before the Tribunal relating to the preparation of points of defence or evidence wasted by reason of the transfer of the proceedings to the District Court of New South Wales. The determination of such costs is to be as agreed or assessed at the conclusion of the proceedings because what costs are wasted will not be able to be determined until the substantive proceedings are concluded. 71.The orders of the Tribunal are: 1.That the applicant pay to the respondents two thirds of the respondents costs of the application to transfer, such costs to be as agreed or assessed immediately. 2. That the applicant pay to the respondents the respondents' costs incurred in the proceedings before the Tribunal relating to the preparation of points of defence and evidence being costs wasted by reason of the transfer of the proceedings to the District Court of New South Wales, the determination of such costs to be as agreed or assessed at the conclusion of the proceedings. M Harrowell Principal Member Civil and Administrative Tribunal of New South Wales 17 June 2014 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: 21 August 2014