Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mitchell Bannink v Nissan Australia Pty.Ltd., Dominelli Group Pty. Ltd. t/as Rockdale Nissan and National Capital Motors (Aust) Pty. Ltd. [2015] NSWCATAP 56 Hearing dates: In chambers Date of orders: 23 March 2015 Decision date: 23 March 2015 Jurisdiction: Appeal Panel Before: J Smith, Senior Member and S Thode, Senior Member Decision: The application for costs is dismissed. Each party is to pay their own costs. Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Category: Costs Parties: Appellant – Mitchell Bannink First Respondent - Nissan Australia Pty. Ltd. Second Respondent – Dominelli Group Pty. Ltd. t/as Rockdale Nissan Third Respondent – National Capital Motors (Aust) Pty. Ltd. Representation: Counsel: Ms L Goodsell for the appellant Solicitors: File Number(s): AP 14/ 46475 Decision under appeal File Number(s): MV 14/6948 REASONS INTRODUCTION 1. The substantive appeal of matter MV 14/06948 was heard by the Appeal Panel on 30 October 2014 and a decision in that matter was published on 13 November 2014 (AP14/ 46475). At that time, in the event that the parties were unable to agree on the issue of costs, leave was granted for the parties to make written submissions or to seek a hearing on that issue only within 14 days of the decision. 2. Submissions were filed by the appellant and by the first and third respondents on 27 November 2014. No submission was received from the second respondent. Having read the parties' submissions the Appeal Panel granted leave for the parties to file further submissions and the parties' attention was drawn to the decision of the Appeal Panel in Megerditchian v Kurmond Homes Pty. Ltd. [2014]NSWCATAP 120. 3. No further submissions were filed and the matter has been referred to the Appeal Panel for a decision "on the papers". 4. This is the decision on the issue of costs of the appeal only. RESPONDENTS' SUBMISSION 1. The third respondent's submission was to the following relevant effect. 2. The Civil and Administrative Tribunal Rules (NCAT Rules), rule 38, provides that the Tribunal may award costs in the absence of the "special circumstances" required by the Civil and Administrative Tribunal Act (NCAT Act) s 60 if the amount in dispute is more than $30,000. 3. The amount in dispute in this case was $72,000 being the approximate cost of replacement of the vehicle and was well in excess of the $30,000 provided by rule 38. 4. The Tribunal should follow the practice previously applying under the Consumer, Trader and Tenancy Tribunal Regulation 20(4) by making an order that costs follow the event. 5. The appellant and the first and third respondents were legally represented at the appeal and the respondents did not engage in any conduct that would disentitle them to a costs order. Further, the Notice of Appeal did not satisfactorily and with any precision set out the error of law relied on resulting in the costs to the other parties increasing. 6. The appellant's case on appeal was extremely weak because of lack of relevant evidence and because there was no basis for contending that new evidence was significant and was not reasonably available at the initial hearing. 7. In the alternative it was submitted that the above matters amount to "special circumstances" warranting an order for costs. 8. The first respondent's submission on costs was simply to adopt and rely on the submissions of the third respondent. APPELLANT'S SUBMISSION 1. The appellant's submission was to the following relevant effect. 2. The starting point for consideration of a costs application is that each party is to pay their own costs (NCAT Act, s 60(1)). 3. Pursuant to s 60(2) the Tribunal may award costs if there are "special circumstances" warranting such an award. There are no special circumstances in these proceedings. 4. It was submitted that the refusal of the Appeal Panel to allow the tender of an audio disc of the initial hearing was a matter to which regard should be had pursuant to s 60(3)(c), (e) and (g) when considering the application for costs. 5. The appeal itself was neither frivolous nor vexatious but proceeded in good faith. 6. The issue of whether or not the Tribunal at first instance had jurisdiction was not a matter ultimately pursued by the respondents and the costs associated with work done in that regard should not be included in any costs order made. 7. Further, the relative financial strength of the respondents and the appellant and the costs incurred by the appellant in obtaining expert evidence are matters that should be considered. RELEVANT LAW 1. The NCAT Act s 60 provides 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, 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. (5) In this section:"costs" includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal. 1. The appellant's submission that the starting point for consideration of a costs application in the Tribunal is that in normal circumstances each party is to pay its own costs is quite correct. 2. Section 60(2) provides the exception to the rule and s 60(3) sets out the matters to which the Tribunal may have regard in determining whether there are "special circumstances". 3. The Civil and Administrative Tribunal Rules, Rule 38 to which the Appeal Panel was referred by the respondent's submission, provides 38 Costs in Consumer and Commercial Division of the Tribunal (1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if: (a) the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under clause 10 (2) of Schedule 4 to the Act in relation to the proceedings, or (b) the amount claimed or in dispute in the proceedings is more than $30,000. 1. From reading of Rule 38(1) it is clear that the rule has application only to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. 2. This appeal was naturally before the Appeal Panel and remains before the Appeal Panel in the exercise of its powers in connection with costs. It necessarily follows that Rule 38 has no application to this costs determination. So much was recently determined by the Appeal Panel in Megerditchian v Kurmond Homes Pty. Ltd. [2014]NSWCATAP 120, a decision with which we respectfully agree and follow. 3. Hence, in order to succeed on this application it is necessary for the respondents to establish "special circumstances". 4. The written submissions from the parties did not assist the Appeal Panel in determination of that issue. 5. The appellant's submission was simply that there are no special circumstances. The respondent's submission dealt with Rule 38 and submitted a parallel with the situation previously applying under the Consumer Trader and Tenancy Tribunal Act 2009. 6. The Court of Appeal considered the words "special circumstances" under the Administrative Decisions Tribunal Act in Cripps v G & M Mawson [2006] NSWCA 84. In that case the Court held that it is sufficient to satisfy that wording if the circumstances are "out of the ordinary". It is not necessary that they be extraordinary or exceptional. 7. Adopting that analysis to the circumstances of this case the Appeal Panel is of the view that this appeal, although unsuccessful and although most of the parties were legally represented, was perfectly ordinary in every sense and that there were no special circumstances justifying the Appeal Panel considering the exercise of its discretion pursuant to s 60(2). 8. The appeal was filed and directions were made and a hearing conducted. In order to determine the merit of the appeal it was necessary for the Appeal Panel to hear argument from the parties and to carefully consider those arguments. 9. This view of the circumstances is not altered by having regard to those matters set out under s 60(3)(a) to (g). There was no delay and no aspect of the conduct of the matter that unnecessarily disadvantaged another party. The Appeal Panel is not persuaded that consideration of any other matter set out at s 60(3) establishes "special circumstances". 10. There is no suggestion that the appeal was frivolous or vexatious. It was brought by the appellant because he believed he had been unfairly dealt with at first instance. Ultimately, for the reasons already given the appeal was not successful, but it was not out of the ordinary in any sense. 11. In these circumstances the Appeal Panel is satisfied that the "starting point" set out at s 60(1) apply and that each party should pay their own costs. FURTHER SUBMISSIONS 1. It is brought the attention of the parties that further submissions were received after this decision was written and after the time for filing of further submissions had expired. The Appeal Panel notes the submissions received but, having considered the submissions, does not alter its findings and now publishes the orders 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 March 2015