Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Florida Kitchen Centre Pty Limited v Keith [2016] NSWCATAP 54 Hearing dates: 9 November 2015 Date of orders: 23 February 2016 Decision date: 23 February 2016 Jurisdiction: Appeal Panel Before: N Hennessy LCM, Deputy President S Westgarth, Deputy President Decision: AP 15/50685 (1) The appeal is upheld. (2) Orders 3 and 3 made on 7 August 2015 in file HB 14/61674 (as varied by decision of 21 September 2015) are set aside. (3) The appellant's application for costs is refused. (4) The respondent's application for costs in Florida Kitchen Centre Pty Ltd v Keith, 21 September 2015 (ex tempore) is refused. AP 15/58967 (1) The appellant's appeal against order 10 made on 28 September 2015 in HB 14/61674 is withdrawn and dismissed. (2) Leave is refused for the appellant to appeal from directions 3, 5 and 6 made on 28 September 2015 in HB 14/61674 on grounds other than questions of law. (3) The appeal is otherwise dismissed. (4) The respondent's application for costs is refused. Catchwords: APPEAL – Summary dismissal power – proceedings causing disadvantage - striking out a claim or defence when party causing disadvantage – scope of power APPEAL – appeal from directions as to the filing of evidence – interlocutory appeal – leave required – satellite proceedings to be discouraged Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Sch 4, cl10, s 60 Cases Cited: Commissioner of Police v Fine and Independent Liquor and Gaming Authority [2014] NCATAP 24 Category: Principal judgment Parties: Florida Kitchen Centre Pty Limited Robert Keith Representation: Solicitors: Cadmus Lawyers (Appellant) Bradbury Legal (Respondent) File Number(s): AP 15/50685AP 15/58967 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: AP 15/50685 7 August 2015 AP 15/58967 28 September 2015 Before: G Meadows, Senior MemberM Harrowell, Principal Member File Number(s): HB 14/61674 ex tempore decision First appeal 1. These proceedings relate to an application in relation to a home building dispute brought by Robert Keith against Florida Kitchen Centre Pty Limited. Florida Kitchen Centre has lodged appeals from two decisions and directions made by the Consumer and Commercial Division of the Tribunal. The first decision was made on 7 August 2015 and the second on 28 September 2015. These reasons also include consideration of costs applications on appeal and a costs application in relation to an Appeal Panel dated 21 September 2015 to lift a stay made on the operation of the 7 August 2015 decisions. 2. We will deal firstly with the appeal from two orders made by the Tribunal on 7 August 2015, both numbered "3". Those orders were that: 3. Florida Kitchen Centre Pty Ltd (address deleted) is to pay John Robert Keith (address deleted) the sum of $95,700 on or before 4 September 2015. 1. There is a note to that order: NOTE: If the other party does not comply with the order to pay money, a certified copy of the above money order may be obtained from the Tribunal for the purpose of enforcement action through the Local Court." 1. The second order, also numbered 3 was that: 3. The applicant is to place the moneys, the subject of order 2 above, into a secure bank account and is not to expend those moneys for any purpose, pending the final determination of these proceedings. 1. In a decision dated 21 September 2015, the Appeal Panel constituted by Deputy President Westgarth, considered an application for a stay of the order that Florida Kitchen Centre pay Mr Keith $95,700. The Appeal Panel ordered that the second order 3 be varied so that the money is to be paid into a trust account. Consequently, the second order 3 is as amended by that decision. 2. The orders were purportedly made pursuant to Schedule 4, cl 10 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). That provision headed "Proceedings Causing Disadvantage" gives the Tribunal power to make an order if a party is causing disadvantage in the way that the proceedings are being conducted. Where the party causing the disadvantage is not the applicant, the Tribunal is empowered under cl 10(2)(b)(i) to: (i) determine the proceedings (or part of the proceedings) in favour of the applicant and make any appropriate order, or (ii) order the party causing the disadvantage be struck out of the proceedings (or part of the proceedings). 1. The meaning of the words, "determines the proceedings (or part of the proceedings)" is that the proceedings are determined finally or that part of the proceedings is determined finally. 2. In the first order 3, the Tribunal appears to make what is a final order by ordering that Florida Kitchen Centre pay Mr Keith $95,700 on or before 4 September 2015. However, that order is qualified by the second order 3, whereby the applicant is to pay the moneys into a secure bank account. As we have noted, that order has been varied so that the moneys are to be paid into trust. 3. In our view, that order does not determine the proceedings or part of the proceedings and, therefore, it was made without jurisdiction. Support for that view comes from the remainder of the directions made by Senior Member Meadows on 7 August 2015. In particular, order 4 makes it clear that the defence has not been struck out and order 5, (that each party is to provide written submissions in relation to the issues in the previous paragraph within a certain timeframe) would not have been needed if the order had been a final order. 4. Mr Hoffman, representing the respondent to the appeal, Mr Keith, submitted that the Points of Claim include a claim for repayment of the $95,700 paid under the contract as a consequence of the Florida Kitchen Centre's failure to supply and install a kitchen or any other joinery required under the contract. 5. We accept that that was the submission that Mr Hoffman put to the Tribunal below, that is, that the $95,700 should be paid as a final order. Nevertheless, the Tribunal chose not to make the order in those terms and instead qualified the order in the way we have described. 6. In those circumstances, we are satisfied that the Member did not make an order which determined the proceedings or part of the proceedings and, therefore, that the order was beyond power. 7. The appeal is upheld and Orders 3 and 3 made on 7 August 2015 in file HB 14/61674 (as varied by decision of 21 September 2015) are set aside. Costs of first appeal 1. Mr Elias, representing Florida Kitchen Centre, has applied for costs in relation to the Appeal Panel's order to set aside the two orders numbered 3 referred to above. The costs power is in s 60 of the NCAT Act. The general rule is that each party to the proceedings is to pay their own costs. The Tribunal may award costs but only if it is satisfied that there are special circumstances warranting an award of costs. 2. Mr Elias points to conduct which the Tribunal at first instance found was disadvantaging Mr Keith in the proceedings below and sought to rely on that conduct as a basis for seeking costs. 3. We are not satisfied that any of the matters listed in s 60(3) of the NCAT Act or any other matter that may be relevant, warrants an award of costs in this case. The point on which the appeal turned was the power of the Tribunal to make an order of the kind it purported to make under Schedule 4, clause 10 of the NCAT Act. We have found the Tribunal did not have the power to make the order it made. 4. One ground of appeal was that the Tribunal had no power to make the two orders, however Mr Elias has been unable to identify in his own submissions where he has provided any basis for that ground of appeal. That matter was raised by Deputy President Westgarth in the decision in relation to the stay and put to Mr Keith, as the respondent to the appeal, in the proceedings this afternoon. 5. Mr Elias has not identified any conduct of Mr Keith that would justify costs being granted. We dismiss the application for costs in relation to this part of the appeal. Application for costs of 21 September 2015 stay decision 1. Mr Hoffman, representing Mr Keith, applied for costs in relation to a decision of the Appeal Panel on 21 September 2015 lifting a stay of the order the Tribunal made on 7 August 2015. The effect of lifting the stay was that the sum of $95,700 had to be paid into trust. Today, the Appeal Panel has set aside the orders that were the subject of the stay applications. 2. Mr Hoffman submitted that Florida Kitchen Centre applied for a stay of the Tribunal's orders made on 3 September 2015 but was unsuccessful. In addition, he submitted that Florida Kitchen Centre did not lead any evidence or make any submissions that would justify a stay. 3. We refuse the application for costs of the stay hearing. Mr Hoffman has not pointed to anything other than the fact that his client was successful on that application as being a basis for an order for costs. Since special circumstances are required, we refuse the application. Orders in AP 15/50685 1. The appeal is upheld. 2. Orders 3 and 3 made on 7 August 2015 in file HB 14/61674 (as varied by decision of 21 September 2015) are set aside. 3. The appellant's application for costs is refused. 4. (4) The respondent's application for costs in Florida Kitchen Centre Pty Ltd v Keith, 21 September 2015 (ex tempore) is refused. Second appeal 1. Our orders in relation to the second appeal are that leave is refused for Florida Kitchen Centre to appeal on grounds other than questions of law, and the appeal is otherwise dismissed. The reasons for that decision follow. 2. The appeal is against directions made by Principal Member Harrowell on 28 September 2015. In particular, the orders appealed against are orders 3, 5, 6 and 10. Mr Elias, representing Florida Kitchen Centre, has confirmed at the hearing today that any appeal in relation to order 10 is withdrawn. The appeal against that order is dismissed. 3. The remaining orders relate to the timetable for Florida Kitchen Centre, the respondent below and the appellant in these proceedings, to file and serve lay evidence. Order 3 is for that evidence to be served on or before 16 October. That has now been modified to being served by 11 November 2015. Orders 5 and 6 relate to the parties' experts meeting at the appellant's premises to inspect works and material, and for there to be a mechanism for any disagreement in relation to the matters between the experts. 4. These are directions as to practice and procedure made in the context of the case management of this matter. The matter has a considerable history. These directions are but one of numerous sets of directions made in the proceedings. There is a dispute between the parties as to whether inspection is required; the scope and timing of that inspection and the identity of the experts. 5. These are all interlocutory decisions and as such leave is required before an appeal can be made: NCAT Act, s 80(2)(a). The principles in relation to granting leave have been summarised by the Tribunal on several occasions including in Commissioner of Police v Fine and Independent Liquor and Gaming Authority [2014] NCATAP 24 at [17] to [22]. The general principles are that an applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at, but more specifically, in relation to issues of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of the hearing. That is the situation in these proceedings. 6. The proceedings are ongoing and the matter is listed for hearing on 25 November 2015. Leave to appeal against interlocutory decisions, especially in the nature of directions for parties to prepare the matter for hearing, is reserved for cases with special features warranting appellate review. 7. The courts have made it clear that where the statute, in this case the Civil and Administrative Tribunal Act, imposes a leave requirement, such appeals are not to be brought as a matter of routine. While it is unnecessary and unwise to lay down rigid and exhaustive criteria, there is a general requirement that there be an error of principle and a risk of substantial injustice if leave were not granted. 8. Mr Elias has put forward evidence and submissions today in support of his application that leave be granted. Mr Hoffman, representing the respondent to the proceedings, Mr Keith, has put forward evidence and submissions as to why leave should be refused. In our view, the orders and directions made by the Tribunal were routine kinds of matters dealt with in home building cases. Mr Elias could not point to any prejudice which could not be remedied by making submissions at the final hearing, or by appealing against any final order made by the Tribunal. 9. The issuing of summonses was one matter to which he referred. Mr Elias may renew any application for summonses when this matter is again before the Tribunal for directions on 12 November 2015. At that time he may make submissions in relation to any unfairness a refusal to issue a summons may create. 10. One of the main reasons we have refused leave today is that Mr Elias has not been able to identify any irreversible prejudice to his client if the inspection of his client's premises is carried out. As we have said, he can put a submission to the Tribunal at the hearing that particular expert evidence is not relevant. If the Tribunal nevertheless takes into account irrelevant matters, that is a basis on which he could lodge an appeal. 11. The guiding principle of the Tribunal is to facilitate the just, quick and cheap resolution of matters in dispute. That is set out in s 36 of the Civil and Administrative Tribunal Act. The Tribunal must seek to give effect to that principle when it exercises any powers given to it by this Act or the procedural rules, or interprets any provision of the Act or procedural rules. In our view, the just, quick and cheap resolution of the real issues in these proceedings will be facilitated by each party complying with the directions the Tribunal has made at first instance, and making submissions and giving evidence at the hearing. We urge the parties to adopt that course so this matter may be brought to a speedy conclusion. Costs of second appeal 1. The Appeal Panel dismisses the application for costs for the following reasons. The grounds on which Mr Hoffman relied in s 60 of the Civil and Administrative Tribunal Act, were the relative strengths of the claim made by the parties, which is s 63(c), and the submission that Mr Elias's appeal had no tenable basis in fact or law. Mr Hoffman also relied on s 60(3)(f), that Mr Elias had refused or failed to comply with the duty imposed in s 36(3). That duty is to cooperate with the Tribunal to give effect to the guiding principle and for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the tribunal. The guiding principle, set out in 36(1)(b), is to facilitate the just, quick and cheap resolution of the real issues in dispute. 2. The appeal in this case was from directions of Principal Member Harrowell made in these proceedings on 28 September 2015. Mr Elias, on behalf of his client, appealed against several of those directions. Leave is required under s 80(2) of the Civil and Administrative Tribunal Act for any interlocutory decision and leave was refused. We have not formed the view that the appeal had no tenable basis in fact or law, that it was misconceived or lacking in substance, or that Mr Elias had failed to comply with the guiding principle in s 36(3). We should emphasise however, that this was a matter where there were several circumstances favouring an award of costs. Firstly, the application was a weak one. Secondly, it did not deal with the real issues in dispute in these proceedings but rather with satellite issues relating to inspection of premises. Thirdly, the Appeal Panel, in previous maters, has exercised its discretion to award costs taking into account the fact that costs normally follow the event at first instance. 3. However, on balance, in this case, we are not satisfied that there are special circumstances warranting an award of costs. We wish to emphasise that if Mr Elias and his client continue to fail to comply with any directions of the Tribunal, this Appeal Panel and the tribunal, may take a different view in relation to costs. 4. Consequently, the application for costs is refused. Orders in AP 15/58967 1. The appellant's appeal against order 10 made on 28 September 2015 in HB 14/61674 is withdrawn and dismissed. 2. Leave is refused for the appellant to appeal from directions 3, 5 and 6 made on 28 September 2015 in HB 14/61674 on grounds other than questions of law. 3. The appeal is otherwise dismissed. 4. The respondent's application for costs is refused. ********** 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: 23 February 2016