Tadrosse v MacFayden & anor [2015] NSWCATAP 178

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tadrosse v MacFayden & anor [2015] NSWCATAP 178 Hearing dates: On the papers Date of orders: 19 August 2015 Decision date: 19 August 2015 Jurisdiction: Appeal Panel Before: D Patten, Principal Member R Titterton, Senior Member Decision: Order that appellant pay respondents costs of appeal on a party and party basis as agreed or as assessed. Catchwords: Costs – special circumstances Legislation Cited: Civil and Administrative Tribunal Act Category: Costs Parties: George Tadrosse (appellant) Glen MacFayden and Heidi MacFayden (respondents) Representation: On the papers File Number(s): AP 15/04528 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2014] Date of Decision: 14 October 2014 and 13 January 2015 Before: D Goldstein, Senior Member File Number(s): HB 13/63897

REASONS FOR DECISION 1. On 10 October 2014 the Tribunal at first instance (Senior Member Goldstein) ordered that the appellant pay to the respondents the sum of $18,070.93. On 13 January 2015 the Tribunal at first instance ordered the appellant to pay the costs of the proceedings. 2. On 28 January 201 the appellant filed a Notice of Appeal in relation to both the earlier decisions. The Appeal was plainly out of time in relation to the decision of 10 October 2014 and required leave. This was a matter adverted to when the appeal came before an Appeal Panel (Principal Member Redfern) for directions on 12 March 2013 as directions were given for the filing of submissions by the appellant in relation to his application for an extension of time and for submissions by the respondents in reply. 3. As it appears the directions about an extension of time to appeal were ignored by the appellant presumably because he had decided in the meantime to withdraw his appeal. This circumstance was notified by letter from Watson & Watson Solicitors for the appellant dated 2 April 2015 to Hunt and Hunt Solicitors for the respondents. 4. The letter produced a reply from Hunt & Hunt indicating that their clients did not oppose withdrawal of the appeal but would be seeking indemnity costs. Before the next directions hearing the appellants counsel Mr Bland filed submissions on costs to which we will need to return. 5. On 9 April the Appeal Panel on the application to withdraw the appeal by the appellant ordered that the appeal be dismissed. The question of costs was referred for decision by an Appeal Panel on the papers and the parties were given leave to make submissions. 6. In support of their application for indemnity costs in respect of the appeal the respondents counsel in a written submission said: (8) The Respondent seeks those costs on an "indemnity basis" for the following reasons. (a) The Appeal was significantly out of time with no explanation for the delay (b) It was only when informed by the Respondent that leave was required that the Tadrosse sought that leave. (c) The Tribunal made procedural orders for the filing and service of submissions Tadrosse did not comply (d) The Respondent wrote to Tadrosse seeking to clarify if he intended to file any submissions, there was no reply until 7 April 2015 after the Respondent filed and served their submissions. (e) The Respondents in compliance with the directions of the Panel filed and served submissions so that the Panel could determine the leave question on the papers. (f) Those submissions demonstrate a clear summary of why leave should not be granted. That summary included a review of the appeal on the merits. (g) The Appeal was entirely without merit. (h) Tadrosse has had the assistance of legal advice but maintained the appeal anyway. 1. In relation to costs the matter is governed by s 60 of the Civil and Administrative Tribunal Act 2013. Rule 38 of the Civil and Administrative Tribunal Rules has in our view no application to an Appeal but in any event the amount in issue in the appeal is less than $30,000.00. 2. In our opinion the matters listed above (a) and (c) coupled with the fact that the appeal was dismissed on the application of the appellant are capable of constituting special circumstances within s 60(2). The appellant relied on its early decision to withdraw the appeal and submitted that the respondents incurred costs needlessly having regard to the directions given on 12 March 2015. However we do not think that the appellant can reasonably complain about the respondents submissions on jurisdiction and extension of time. These were live issues at least up to the appellant's decision to withdraw the appeal. 3. In our view there were special circumstances and a costs order should be made against the appellant. 4. However we are not persuaded that the circumstances warrant an order for indemnity costs, nor should the appellant be liable for costs unnecessarily incurred having regard to the comparatively early stage at which it was dismissed.