Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hacienda Caravan Park Pty Ltd v Howarde (No 2) [2016] NSWCATAP 152 Hearing dates: On the papers Date of orders: 20 July 2016 Decision date: 20 July 2016 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member R Titterton, Senior Member Decision: The appellant's application for costs is dismissed There is no order as to costs Catchwords: COSTS OF APPEAL – special circumstances – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 Holiday Parks (Long-Term Occupation) Act 2002 Residential Parks Act 1998 Cases Cited: Cooper v Hacienda Caravan Park Pty Ltd [2006] NSW CTTT 694 Hacienda Caravan Park Pty Ltd v Howarde [2016] NSWCATAP 1 Knight v Clifton [1971] Ch 700; [1971] 2 All ER 378 Category: Costs Parties: Hacienda Caravan Park Pty Ltd (Appellant) Mark Howarde and Laurina Spencer (Respondents) Representation: Counsel: M Gunning (appellant) Solicitors: KL Legal (appellant) P Smith, Tenants' Union (respondents) File Number(s): AP 15/06195 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: K Holwell Before: K Holwell File Number(s): RP 14/50276 REASONS Introduction 1. These reasons concern the costs of the appeal Hacienda Caravan Park Pty Ltd v Howarde [2016] NSWCATAP 1. In that decision, published on 4 January 2016, the Appeal Panel allowed the appeal, and set aside orders made by the Consumer and Commercial Division of the Tribunal (the Tribunal) on 15 January 2015. 2. In its reasons, the Appeal Panel provided a timetable for the filing of submissions as to the costs of the appeal, and also sought the parties' views on whether any application for costs should be dealt with on the papers and without a hearing. 3. Submissions were subsequently received from both parties. Each considered that the issue of costs should be determined by the Appeal Panel on the papers, and without the expense of a hearing. The appellant's submissions 1. The appellant seeks an order that the respondents pay its costs of the appeal. Invoking s 60 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act), it submits that there are special circumstances warranting that order. In summary, those special circumstances are: 1. There was a substantial discrepancy between the appellant's strong case in the appeal, and the respondent's very weak case in response (s 60(3)(c)). 2. The respondent's submissions on the issue of the Tribunal's jurisdiction had no tenable basis in fact or in law (s 60(3)(c)). 3. The respondent's submissions on the issue of intention to occupy site 129 as their principal place of residence as determining jurisdiction (without regard to whether there was an agreement in place to ground jurisdiction) misconceived the operation of the Residential Parks Act 1998 and prolonged the appeal, thereby causing the appellant to have to meet these misconceived submissions in reply ((s 60(3)(c) and s 60(3)(e). 4. The respondents were refused leave to rely on evidence, including irrelevant evidence that was not admitted in the proceedings below, and which required lengthy submissions, both written and oral, to the Appeal Panel as to their admissibility. This unnecessarily prolonged the appeal (s 60(3)(b)). 1. Each of these matters is amplified in the appellant's written submissions. The respondent's submissions 1. The respondents submits that that are no special circumstances warranting an award of costs, and that that there should be no order as to costs and that each party should pay their own costs. 2. The respondents submit that the proceedings were not conducted in any way that unnecessarily disadvantaged the appellant pursuant to s 60(3)(a) or (c), and rely on the decision of the then Consumer Trader and Tenancy Tribunal (CTTT) in Cooper v Hacienda Caravan Park Pty Ltd [2006] NSW CTTT 694. 3. The respondents submit that there was nothing exceptional about the appeal, and that, in relation to s 60(3)(c) of the NCAT Act, submit a jurisdictional challenge could have been brought by the appellant in the proceedings before the Tribunal. They submit that it was the appellant's own conduct of the appeal that caused unnecessary delay and resulted in oral evidence before the Appeal Panel. 4. The respondents further submit that, pursuant to s 36(4) of the NCAT Act, the cost to the parties is to be proportionate to the importance and complexity of the subject matter of appeal proceedings. 5. The respondents submit that there was no "out of the ordinary or grossly unreasonable conduct" on their part that warrants an award of costs against them. 6. Finally, the respondents submit that they are both pensioners and vulnerable to homelessness, and that they are not in a position where they can bear the financial burden of an adverse costs order. They also submit that it is appropriate for the Appeal Panel to have regard to the particular circumstances of the case (Knight v Clifton [1971] Ch 700; [1971] 2 All ER 378), and to the "relative power imbalance between the parties". The appellant's submissions in reply 1. In brief submissions in reply, the appellant relevantly submits that: 1. Cooper v Hacienda Caravan Park Pty Ltd [2006] NSW CTTT 694, relied on by the respondent, is not relevant. 2. It is incorrect for the respondents to say that the appellant failed to challenge the jurisdiction of the Tribunal below. Relevant Legislation 1. The starting point is s 60 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). That section relevantly 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. Consideration 1. While the appellant relies on four matters which it submits supports a finding that there are special circumstances as warranting an award of costs, in reality there are two substantive grounds. 2. The first ground, (comprising the first, second and third matters relied on by the appellant, and summarised above), has been put a number of ways, all of which relate to the legal strength of the appellant's case: the appellant had a strong case; the respondent had a weak case; there was a substantial discrepancy between the two cases; the respondent's case had no tenable basis in fact or in law. 3. It is to be recalled that the appellant had submitted to the respondents an occupation agreement pursuant to the Holiday Parks (Long-Term Occupation) Act 2002 (HP Act) for signing. The respondents had refused to sign the occupation agreement claiming that the Residential Parks Act 1998 (RP Act) applied to their occupation of the site. The respondents had sought orders in relation to a termination notice issued by the appellant, asserting their right of occupation was as a residential tenant under RP Act. The respondents said a termination notice had been issued by the appellant which stated that there was an occupation agreement to which the HP Act applied. 4. The Tribunal found, as claimed by the respondents, the RP Act applied to their occupation of the site, and that the HP Act did not. 5. The Appeal Panel noted, at [17] of its decision, that the critical issue for determination in the appeal was whether the Tribunal was correct in finding that approval had been given by the appellant to the respondents to occupy site 129 as their principal place of residence and that the appellant was obliged to enter into a residential tenancy agreement with the respondents under the RP Act. The Appeal Panel found that there was no agreement to permit the respondents to occupy site 129, and that the Tribunal was in error in concluding that the appellant was obliged to enter into a residential tenancy agreement under the RP Act with the respondents, and that the respondents were entitled to occupy the site as their principal place of residence. 6. In summary, the Appeal Panel took a different view of the legal consequences which flowed from the Tribunal's findings of fact. Regrettably, this is a regular occurrence in appellate litigation. The question for the Appeal Panel now is whether this matter, either alone or in combination with other matters raised by the appellant, constitutes special circumstances for the purposes of the NCAT Act. 7. The Appeal Panel does not consider that this ground of itself establishes special circumstances as claimed. Where it to be otherwise, virtually every successful appeal would establish special circumstances. 8. The second ground (comprising the fourth matter relied on by the appellant, and summarised above), relates to the respondents unnecessarily prolonging the appeal, namely by seeking to rely on evidence that had been rejected by the Tribunal. 9. The Appeal Panel considers that this submission overstates matters. 10. It is correct that at the hearing the respondents sought to tender a statutory declaration of the respondent Mr Mark Howarde sworn 7 April which related to an attendance by Mr Howarde at the appellant's office at the residential park. The appellant objected to the tender of the declaration on the basis that it had not been tendered below, was fresh evidence, and that Mr Howarde was not available for cross-examination. In addition, the respondents sought to tender a licence issued to the appellant pursuant to s 68 of the Local Government Act 1993 to operate a caravan park. After the hearing of lengthy oral submissions, the Appeal Panel delivered oral reasons rejecting the tender of the statutory declaration and the licence. While some time of the hearing was taken up dealing with the tender of this evidence, the hearing was completed in the time allowed. Accordingly, we do not agree that the hearing of the appeal was unnecessarily prolonged. 11. We accept the respondents' submissions that proceedings were not conducted in any way that unnecessarily disadvantaged the appellant pursuant to s 60(3)(a) or (c) of the NCAT Act, that there was nothing exceptional about the appeal. We also accept that there was no "out of the ordinary or grossly unreasonable conduct" on their part that warrants an award of costs against them. 12. The Appeal Panel does not consider that this ground alone establishes special circumstances as claimed. Conclusion 1. In our reasons of 4 January 2016 we noted at [64] that, in relation to the costs of the proceedings before the Tribunal, the case had no features that made it out of the ordinary: see Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 12. We also noted at [65] that we had formed a preliminary view that there should be no order as to costs, and that each party should pay their own costs, as there did not appear to be special circumstances warranting such an award. However, as there may have been matters of which we unaware, we considered that the appropriate course was to allow the parties the opportunity to make submissions as to the costs of the appeal. 2. Having considered the circumstances of the case as a whole and the matters referred to above, we are not satisfied that there are special circumstances warranting the displacement of the usual order that each party is to pay their own costs. 3. Accordingly, is not necessary to consider the respondents' submission that, pursuant to s 36(4) of the NCAT Act, the cost to the parties is to be proportionate to the importance and complexity of the subject matter of appeal proceedings. So that that sub-section can be understood the context in which it appears, it is appropriate to set out the entirety of s 36: 36 Guiding principle to be applied to practice and procedure (1) The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate 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: (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions. 1. As can be seen, sub-section (4) appears in a section of the NCAT Act dealing with the overarching or guiding principles of the procedure in the Civil and Administrative Tribunal. We do not consider that sub-section of itself it provides guidance as to when orders for costs should be made, given the very clear words of s 60. Section 36(4) may be relevant in the assessment of costs. 2. Nor is it necessary to express a view on the respondents' financial position and their difficulty in paying costs if ordered to do so, or what the respondents describe as the relative power imbalance between the parties. Orders 1. The Appeal Panel makes the following orders: 1. The appellant's application for costs is dismissed. 2. There is 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: 20 July 2016