Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hasan v Pirasta Pty Ltd [2015] NSWCATAP 153 Hearing dates: 13 July 2015 Date of orders: 24 July 2015 Decision date: 24 July 2015 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member J McAteer, Senior Member Decision: (1) Application for leave to appeal is refused; and (2) The appeal is otherwise dismissed. (3) No order as to costs. Catchwords: Appeal against costs order. Discretion applicable to claim in Consumer and Commercial Division-claim in excess of $30,000 Legislation Cited: Retail Leases Act, 1994 Civil and Administrative Tribunal Rules, 2014 Civil and Administrative Tribunal Act No 2, 2013 Cases Cited: House v The King [1936] 55 CLR 499 Oshlack v Richmond River Council [1998] 193 CLR 72 Category: Principal judgment Parties: Turan Hasan (appellant) Pirasta Pty Ltd (respondent) Representation: Appellant: No appearance Respondent: A Cornish (Counsel) File Number(s): AP 15/30323 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Turan Hasan & Inver Kapuraya v Pirasta Pty Ltd [2015] NSWCATCD 2 Date of Decision: 13 January 2015 Before: D Goldstein, Senior Member File Number(s): COM 14/15733 REASONS FOR DECISION 1. This is an appeal against a decision of the Tribunal made 13 January 2015 in which the Tribunal ordered the appellant to pay the respondents costs in application COM 14/15733. 2. The appellant was the tenant pursuant to a retail lease who brought proceedings against the respondent that was the landlord. (Original Proceedings). In those proceedings the appellant claimed that the respondent had acted unconscionably and had breached the terms of the retail lease. The applicant claimed compensation of $130,000.00 plus interest. The Original Proceedings were commenced on 10 April 2014. Prior to this time the appellant had attempted to mediate with the respondent however the respondent declined to participate in mediation. Consequently a certificate was issued under the Retail Leases Act, 1994 (RL Act). 3. The appellant's application was dismissed by order of the Tribunal on 14 October 2014. In doing so, the Tribunal directed the parties to file and serve submissions in relation to costs. The appellant's written submissions became MFI 1 in the appeal. 4. On 13 January 2015 the Tribunal made an order for costs in favour of the respondent. That order required the appellant to pay the respondent's costs as agreed or assessed on an ordinary basis pursuant to Division 11 of Part 3.2 of the Legal Profession Act, 2004. The Tribunal published reasons for making this costs order (Cost Decision). It is the Costs Decision which is the subject of this appeal. Grounds of appeal and party's submissions 1. On 28 April 2015 the appellant filed a notice of appeal. 2. The notice of appeal recorded at item 3 that the appellant received notice of the cost decision on 10 April 2015. 3. The grounds of appeal were as follows: 1. that the Tribunal was in error in making an award for costs in favour of the respondent; 2. the respondent refused to attend mediation and "abused the prescribed statutory requirement"; 3. in so far as the mediation dealt with issues that were different to those dealt with by the Tribunal in the original proceedings, there was no mediation or relevant certificate issued and "therefore the decision cannot stand". 1. The appellant also seeks leave to appeal and says that the decision was not fair and equitable. In this regard the appellant says that the respondent "abused the process and used its superior financial position to get better representation and that, absent participation in the mediation process by the respondent, it was unreasonable that a costs order should be made against the appellant in the present circumstances. 2. Also attached to the notice of appeal was a letter dated 10 April 2015 from the respondent's solicitors to the appellant which was sent after the Costs Decision and provides details of the amount the respondent claimed for costs. This letter enclosed a copy of the Tribunal's decision dated 13 January 2015. 3. The respondent filed a reply to the appeal on 5 June 2015. In short, the respondent contended that the appeal was filed out of time and that, in any event, leave to appeal is required. 4. The respondent attached to the reply to appeal a copy of submissions which it had originally made to the Tribunal in connection with the Costs Decision. 5. Pursuant to directions made by the Appeal Panel, the matter was fixed for hearing on 13 July 2015. This hearing date was allocated despite a request by the appellant for the matter to be determined "on the papers". 6. On 13 July 2015 the appellant failed to appear. The respondent was represented by Mr Cornish of counsel. 7. Despite the appellant failing to appear, he had previously filed written submissions dated 18 June 2015. Those submissions were filed on 24 June 2015, approximately six days late. The respondent also filed written submissions in reply on 9 July 2015. Counsel for the respondent advised the Appeal Panel these submissions were late due to the late receipt of the appellant's submissions and that a copy of these submissions had been sent to the appellant by email on 9 July 2015. 8. The appellant's written submissions were to the following effect: 1. the general rule applicable in the Tribunal is that each party pays his or hers own costs; 2. the general rule should only be displaced if the Tribunal is satisfied that it is fair to do so having regard to various factors, including: 1. the parties conduct of proceedings, 2. any failure to comply with directions, 3. the relevant legislation, or 4. a party acting in an inappropriate way. In short that special circumstances were required. 1. the respondent failed to attend a mediation and this factor should have been taken account of in the Tribunal's cost decision and that the Tribunal failed to make an order for mediation when the proceedings came before it. 1. In making these submissions the appellant said "I do not see a need to attend a hearing on 13 July 2015. This date is to be vacated as I will lose a day's labour." 2. We should note at this point that the respondent made clear that in the event the appeal was unsuccessful it would not be seeking any costs in connection with the appeal. 3. At the hearing of the appeal, the oral submissions of the respondent were limited to two matters. 4. Firstly, the respondent submitted that, pursuant to Rule 13(4)(a) of the Civil and Administrative Tribunal Rules, 2014 (Rules) the Tribunal's decision, which was sent by post to the residential address for service of the appellant, is taken to be served on the fourth working day after the notice was posted unless the contrary is proved. 5. The respondent submitted that this would mean the decision was served in early January 2015 and that the present appeal is well out of time. 6. When questioned by the Appeal Panel, the respondent submitted that: 1. the statement made by the appellant at item 3 of the notice of appeal that he had received notice of the decision on 10 April 2015, and 2. the attachment to his notice of appeal of the letter from the respondent's solicitors dated 10 April 2015; was not sufficient evidence to displace the presumption in Rule 13. 1. However, the respondent conceded that it had not otherwise required the appellant to attend for cross examination on this issue. 2. The second matter dealt with in oral submissions by the respondent related to the submission found at paragraph 13(b)(3) of the written submissions and the Appeal Panel's concern that the Tribunal had not dealt with the appellant's submissions concerning the respondents refusal to mediate in the Costs Decision. 3. The respondent drew to the Appeal Panel's attention the content of the original submissions made by the parties which included the appellant's submissions at paragraph 5 of MFI 1 and the respondent's submissions at paragraph 12-16 of its submissions dated 11 December 2014 which were attached to its reply to appeal. Decision 1. This appeal requires a determination of three issues, namely: 1. was the notice of appeal filed in time; 2. if yes, is leave required to appeal the Costs Decision; 3. if yes, should leave be granted and should the appeal be allowed. Is the appeal in time 1. In our opinion, the appeal has been lodged in time. 2. The time for lodging an internal appeal is 28 days from the day on which the appellant is notified of the decision to be appealed or given reasons for the decision (whichever is the later): see Rule 25(4)(c) of the Rules. 3. While the notice of order may be deemed to be served four business days after it was posted pursuant to Rule 13 of the Rules, the Appeal Panel is satisfied that the appellant did not in fact receive the decision until 10 April 2015. The reasons for this conclusion are: 1. the notice of appeal in item 3 is a statement by the appellant that he in fact received the cost decision on 10 April 2015. This statement is made in the application which has been signed by the appellant and is a statement of fact. While the respondent submitted it was not in an appropriate form, the Tribunal is not bound by the rules of evidence: see section 38(2) of the Civil and Administrative Tribunal Act No 2, 2013 (NCAT Act) 2. this statement is corroborated by the attachment to the notice of appeal being a letter from the respondent's solicitors dated 10 April 2015. This letter encloses a copy of the Costs Decision and is an advice to the appellant about what the Tribunal had done on 13 January 2015; 3. the respondent did not seek to cross examine the appellant concerning these matters of fact; 4. while the respondent raises issues concerning the fact that the appellant could have been more detailed in his explanation as to the circumstance which he was first notified, absent contrary evidence there is no reason why the statement made by the appellant, corroborated by the letter dated 10 April 2015, should be rejected. 1. Accordingly, the Appeal Panel concludes the appeal was lodged within 28 days from the day on which the appellant was notified of the decision or given reasons for the decision. Is leave to appeal the cost decision required 1. An award of costs in Tribunal proceedings is an ancillary proceeding: see definition in section 4 of the NCAT Act. Consequently, leave is required unless the appeal from an ancillary decision is on a question of law: see section 80(2)(b) of the NCAT Act. 2. The appellant says that the respondent did not comply with the requirements for mediation or alternatively the Tribunal should have ordered mediation as a pre-condition to the determination of the original proceedings. However, the appellant has not appealed the original Tribunal decision. Rather, the appellant has sought to challenge the exercise of the Tribunal's discretion in relation to the award of costs. 3. While the appellant submitted in paragraph 9 of his written submissions that "the Tribunal needs to review its Original Decision and set aside this decision and the subsequent cost decision and orders", no appeal was lodged in relation to the decision made on 14 October 2014. Further, paragraph 7 of the appellant's written submissions suggest that he was not in fact seeking to challenge the decision made 14 October 2014. In this regard the appellant says: "Although I could live with the Tribunal's decision on the case proper, the costs orders and the respondent's manipulation of it are unjust, unreasonable and unfair". 1. In these circumstances, we are not satisfied that the notice of appeal raises any question of law. 2. Further, even if such a question had been raised, it is clear from the original retail lease application that a certificate that mediation had not taken place had been issued by the Registrar on 25 November 2013, well prior to the commencement of the Original Proceedings. In these circumstances there appears to be no basis to the appellant's challenge to the jurisdiction of the Tribunal to hear and determine the original proceedings. 3. Consequently, no question of law has been raised and therefore leave to appeal the Cost Decision is required. Should leave be granted and the appeal allowed 1. Because the appeal is from a decision of the Consumer and Commercial Division, any grant of leave to appeal is regulated by Clause 12 of Schedule 4 of the NCAT Act. This requires the Appeal Panel to be satisfied that there has been a substantial miscarriage of justice because the decision was not fair and equitable, was against the weight of evidence or significant new evidence has arisen which was not reasonably available at the time the proceedings under appeal were being dealt with. 2. The appellant seeks leave on the basis the decision was not fair and equitable. The appellant says the cost decision was not fair and equitable because "special circumstances" were not established by the respondent. 3. However, a retail lease claim under the RL Act does not require the Tribunal to be satisfied that special circumstances exist before a cost order can be made. Rather, in connection with retail lease claims, the following is the position in respect of representation and costs: 1. notwithstanding section 45 of the NCAT Act, a party to proceedings in relation to a retail lease claim is entitled to be represented by an Australian lawyer or other agent without requiring leave of the Tribunal: see clause 7 of schedule 4 of the NCAT Act. 2. section 60 of the NCAT Act, which relates to the requirement for special circumstances to exist before an award of costs is made, does not operate in respect of a claim in the Consumer and Commercial Division where the amount in dispute is more than $30,000.00: see rule 38(2)(b). 3. the amount claimed by the appellant was $130,000.00 plus interest, namely an amount in excess of $30,000.00 as prescribed by the Rules. 4. any challenge to the exercise by the Tribunal of its discretion requires the Appeal Panel to be satisfied that an error has been made of a type referred to in the decision of House v The King [1936] 55 CLR 499. 1. In circumstances where both 1. the usual position that a party represents themselves is displaced to allow representation by a lawyer; and 2. the requirement for special circumstances under 60 is displaced by Rule 38, in our opinion the Tribunal has a general discretion in relation to the award of costs. 1. In exercising its discretion in the Costs Decision, the Tribunal had regard to decision of the High Court in Oshlack v Richmond River Council [1998] 193 CLR 72 and determined that a successful party has a reasonable expectation that a costs order would be made in its favour. The Tribunal also concluded that the appellant was unsuccessful in relation to a dispute concerning a commercial leasing transaction and in these circumstances the successful party should have an award made in their favour for costs. 2. In exercising its discretion, the Tribunal rejected an application for a special order for costs based on a "Calderbank" offer and declined to make an order that the appellant pay the costs on an indemnity basis. In our view, for the reasons expressed by the Tribunal, this conclusion was correct. However this conclusion does not mean that no order for costs was appropriate. 3. The only matter which the appellant otherwise puts forward to challenge the exercise of the discretion by the Tribunal was that the Cost Decision was not fair and equitable because the Tribunal did not take account of the fact that the respondent failed to participate in mediation. In relation to this issue it is appropriate to record the appellant's submission before the Tribunal in relation to the respondents conduct which was in the following terms: "5. The Respondent has shown contempt for the system by refusing to attend Mediation in October 2013 whereby all matters could have been addressed without the severe costs to me or them." 1. As indicated above, the respondent had replied to this submission by written submissions dated 11 December 2014, particularly at paragraph 12 and following. 2. While the Tribunal did not specifically deal with the mediation issue, it seems to us that the Tribunal in fact considered all the written submissions the parties had provided: see Cost Decision paragraph 19. The submission made by the appellant clearly shows that any failure to attend mediation related to events in October 2013, prior to commencement of the Original Proceedings. 3. The respondent had originally submitted to the Tribunal that the mediation related to "claims that were not pressed at hearing". Contrary to the appellant's submissions to the Appeal Panel, this was not a submission that the original proceedings did not include matters that had been the subject of mediation. Rather, the respondent's submission was that the issues to be mediated were not in fact pursued at the final hearing. Consequently the requirements in respect of mediation under the RL Act as a precondition of the Tribunal determining the dispute had been met. 4. Further, the matters set out in the respondent's submissions, which the Tribunal accepted, provided a proper basis for the Tribunal to exercise its discretion in the manner that it did. In this regard in reviewing the Tribunal's reasons it is not appropriate to minutely examine the reasons for the decision to pick error: see Directed General, Department of Finance & Service v Porter [2014] NSWCATAP 6 at [32]. 5. In the present case it is sufficient to say that the appellant brought a substantial claim before the Tribunal in relation to a retail lease dispute and was unsuccessful. The Tribunal was entitled to make an order for costs in favour of the successful party who, in these proceedings, was entitled to be represented by an Australian legal practitioner. 6. The discretion exercised has not, in any relevant sense been shown to have miscarried and the decision of the Tribunal is not shown to be unfair or inequitable. Consequently, the Appeal Panel is not satisfied that the appellant may have suffered a substantial miscarriage of justice. 7. In these circumstances leave to appeal should be refused and the appeal should be dismissed. Costs 1. At the conclusion of the appeal the respondent was asked whether or not it would claim costs if the appeal was unsuccessful. 2. Counsel for the respondent indicated that no application would be made and that the respondent could not point to any special circumstances within the meaning of section 60 of the NCAT Act. 3. Consequently, there should be no order for costs. Orders 1. The Appeal Panel makes the following orders: 1. Application for leave to appeal is refused; and 2. The appeal is otherwise dismissed. 3. No order as to costs. 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: 24 July 2015