Cleary v Pavier (No 2) [2016] NSWCATAP 262

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cleary v Pavier (No 2) [2016] NSWCATAP 262 Hearing dates: On the papers Date of orders: 01 December 2016 Decision date: 01 December 2016 Jurisdiction: Appeal Panel Before: Dr J Renwick SC, Senior Member T Simon, Senior Member Decision: Application for costs dismissed. Catchwords: COSTS – Appeal Panel – Home Building – no questions of law – application for costs - dismissed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) Cases Cited: David James Cleary v Broderick Pavier & Susan Bronwyn Pavier [2015] NSWCATAP 104 Category: Principal judgment Parties: David James Cleary (Appellant) Broderick Pavier (Respondent) Bronwyn Susan Pavier (Respondent) Representation: Counsel: P Batley (Applicant) M Klooster (Respondents)

Solicitors: Snelgroves (Respondents) File Number(s): AP 15/00590 and AP 15/00593 Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 3 December 2014 Before: D Goldstein, Senior Member File Number(s): HB 12/34727 and HB 12/23324

Reasons for decision

Introduction 1. In the principal proceedings in this matter reported at David James Cleary v Broderick Pavier & Susan Bronwyn Pavier [2015] NSWCATAP 104, we decided that the appeal be dismissed, and we made orders for the filing of submissions as to any application for costs. Due to administrative oversight, the outstanding submissions have only just been drawn to our attention and we now proceed to consider the question of costs. 2. Costs in the Tribunal are dealt with by s 60 of the Civil and Administrative Tribunal Act (the Act). Section 60 provides as follows: (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 the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014 ) 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. 1. The appeal was lodged prior to 1 January 2016, so that Rule 38A of the Civil and Administrative Tribunal Rules does not apply, 2. In this matter, the respondent relies upon three matters, which it says are referrable to subsections 60 (3)(c), (d), and (g), and which support the application for a finding of special circumstances warranting the award of costs. In relation to subsection (c), the respondent submits that there was "a lack of merit in the appeal". In fact, as the appellant correctly points out, this is not the test under that subsection. Rather, it is, relevantly, whether a party "has made a claim that has no tenable basis in fact or law". 3. The mere fact that the appeal was dismissed does not mean the arguments put "had no tenable basis". Rather, it means the appellant was not successful. The appellant also notes the fact that the respondent accepted, indeed, submitted, that the proceedings were complex and that this "somewhat diminishes the argument that the appellant's case had no tenable basis". We agree. 4. In relation to the nature and complexity of the proceeding, we accept that there were some issues in the matter which explained why the respondent would choose to be legally represented in the hearing of the appeal, as was the appellant. But the mere fact that parties choose to be legally represented does not itself establish special circumstances – legal representation is common place in matters before the Appeal Panel, which necessarily involve complex issues of law and fact. 5. Next, it was suggested that the amount of money in question also established special circumstances. First, the amount of money, while not small, was not particularly large. Secondly, the mere fact that the claims were in the low hundreds of thousands of dollars does not itself establish special circumstances. 6. Finally, the Respondent noted that there is a provision in the now-repealed Consumer, Trader and Tenancy Tribunal Act and Regulations which permitted the award of costs at first instance "in such circumstances" as the Tribunal thinks fit. The respondent accepted that rule did not apply on the appeal but the fact that it was said to be available at first instance was a relevant matter in determining whether special circumstances exist on appeal. We do not agree, but even if we are wrong, that circumstance would not establish special circumstances. 7. The respondents have not discharged their onus of satisfying us that there were special circumstances warranting an award of costs. We therefore order that the application for an order for costs be dismissed. 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: 01 December 2016