Yarraford Pastoral Company Pty Ltd v Ian Wise [2015] NSWCATCD 41

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Yarraford Pastoral Company Pty Ltd v Ian Wise [2015] NSWCATCD 41 Hearing dates: 9 February 2015 Decision date: 27 March 2015 Jurisdiction: Consumer and Commercial Division Before: Jeffery Smith, Senior Member Decision: The applicant shall pay the respondent's costs in this matter in the sum of $5,996.10, immediately. Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Cripps v G and M Mawson [2006]NSWCA 84 Category: Costs Parties: Yarraford Pastoral Company Pty Ltd (applicant) Ian Wise (respondent) Representation: Mr Howard Hilton for the applicant Mr John O'Brien, solicitor, for the respondent File Number(s): GEN 14/ 20031

REASONS FOR DECISION

INTRODUCTION 1. This is a decision on an application for costs made by the respondent in these proceedings. The proceedings were commenced by application filed by Mr Martin Wainberg on behalf of the applicant on 11 April 2014 and were withdrawn by Mr Howard Hilton on behalf of the applicant at the hearing on 9 February 2015. 2. At that time the respondent's representative advised the respondent would be seeking a costs order. The parties' representatives agreed that the issue of costs should be determined "on the papers" following a period for submissions. 3. As the submissions period has now expired the file has been referred to me for a decision on costs. A short written submission on the issue was filed by the respondent's representative on 23 February 2015. No submission has been received from the applicant.

JURISDICTION 1. The Tribunals power to award costs is set out in the Civil and Administrative Tribunal Act 2001 s 60, which is in the following terms 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. The Tribunal's power to award costs is further modified by the Civil and Administrative Tribunal Rules, rule 38. However, there is no suggestion that rule has any application in the present circumstances. 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. RESPONDENT'S CASE 1. Due to undue delay by the applicant in pursuing this claim, the file had been designated by the Tribunal as a "red dot" file (being in excess of the Tribunal's performance criteria) and had been transferred to Sydney. However, on 23 December 2014, Principal Member Harrowell, sitting at Gunedah had made directions requiring the parties to file and serve submissions in relation to any perceived jurisdictional issue. 2. The respondent necessarily engaged counsel and filed a written submission with affidavit and annexures in compliance with the directions. The applicant did not comply with the directions and sought to withdraw its application just prior to the hearing on 9 February 2015. 3. At the hearing, the application was dismissed pursuant to the Civil and Administrative Tribunal Act 2013, s 55(1)(a) as being withdrawn. 4. The Tribunal has jurisdiction to award costs in "special circumstances" (s 60(2)). 5. In considering the matters set out under s 60(3) the Tribunal should, in the circumstances of this case, conclude that there have been special circumstances and that those circumstances warrant the making of a costs order in favour of the respondent on an indemnity basis. 6. The respondent's submission was that the applicant had * Unnecessarily disadvantaged the respondent by failing to address the jurisdiction issue at an early date, by contradicting findings made against it by the Local Court, by prolongation of the proceedings due to unavailability of it's managing director, by continued failure to formulate the claim in such a manner that the respondent was able to prepare a defence and by disengaging at the last moment causing unnecessary concern, inconvenience and cost to the respondent. * Unreasonably prolonged the proceedings by failing to prosecute the matter, to deal with the jurisdiction issue promptly or to properly formulate it's claim, 1. The applicant's claim, based on the un-contradicted submissions filed by the respondent was not maintainable and was otherwise misconceived. 2. Further, the respondent's submission was that the applicant in behaving in the manner it did was in breach of its obligation pursuant to s 36(3) to facilitate the just, quick and cheap resolution of the issues. 3. The respondent sought costs on an indemnity basis and provided evidence that the respondent's costs amount to $5,996.10.