Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rathchime Pty Ltd v Willatt [2017] NSWCATAP 156 Hearing dates: Heard on the papers Date of orders: 21 July 2017 Decision date: 21 July 2017 Jurisdiction: Appeal Panel Before: Dr J Renwick SC, Senior Member D Goldstein, Senior Member Decision: Rathchime Pty Ltd's application for the costs of the Appeal in these proceedings is dismissed. Catchwords: Special circumstances under section 60 of the Civil and Administrative Tribunal Act 2013 Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: LMA Contractors Limited v Changizi [2017] NSWCATAP 145 Texts Cited: None cited Category: Costs Parties: Rathchime Pty Ltd (Appellant) Grant Willat (Respondent) Representation: Counsel: J. Hyde (Appellant) Solicitors: Mills Oakley Lawyers (Appellant) File Number(s): AP 16/42640 Publication restriction: Unrestricted Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: 2016 NSWCATCC Date of Decision: 09 September 2016 Before: T. Simon, Senior Member File Number(s): HB 14/43750 and HB 15/11593 reasons for decision 1. On 27 April 2017 the decision in these Appeal proceedings was published. The following orders were made: '1. Leave to Appeal in relation to Grounds of Appeal 2 and 3 is refused. 2. The appellant's appeal based on Grounds of Appeal 5 and 6 is allowed. 3. Order 1 of the Tribunal made on 9 September 2016 is set aside and replaced with an order that: Grant Willatt must pay Rathchime Pty Ltd the sum of $90,819.50 immediately. In the event a party wishes to apply for costs, the following orders apply: 4. Any costs application (of no more than 5 pages) must be lodged in the Appeal Division of the Tribunal and served on the costs respondent within 21 days of the date of these orders either attaching or referring to any documents relied upon in support of the application. 5. The costs respondent will have 21 days after the date it receives the application referred to in the preceding paragraph to lodge in the Appeal Division of the Tribunal and serve on the costs applicant its submissions (of no more than 5 pages) in response to the costs applicant's costs application, such submissions either attaching or referring to any documents relied upon. 6. The costs applicant will have 14 days after the date it receives the costs respondent's submissions to lodge in the Appeal Division of the Tribunal and serve on the costs respondent its submissions, if any, in reply, such submissions either attaching or referring to any documents relied upon. 7. Subject to the right of the parties to make submissions under section 50(3) of the Civil and Administrative Tribunal Act 2013, the Appeal Panel will determine any costs application on the basis of the papers lodged in the Appeal Division of the Tribunal' 1. The appellant has filed submissions in support of a costs order in its favour. The respondent has not filed submissions in response to those filed by the appellant. 2. The appellant applies for its costs incurred at first instance and for its costs of the appeal. Costs incurred at first instance 1. No costs application was made to the Tribunal Member at first instance despite the fact that she made orders for the filing and serving of costs submissions in orders 2, 3 and 4 of her decision dated 9 September 2016. 2. In LMA Contractors Limited v Changizi [2017] NSWCATAP 145 the Appeal Panel after referring to section 81 of the Civil and Administrative Tribunal Act 2013 (the 'Act') which sets out the orders that the Appeal Panel may make in determining an internal appeal, stated: 'We are of the view that section 81 of the Act does not allow us to make a costs determination in relation to the proceedings before the Tribunal Member at first instance, in circumstances where there was no application for an order for the costs of those proceedings. The Tribunal at first instance was not able to consider the question of costs if there was no application and therefore we as the Appeal Panel are not able to do so either' 1. We agree with that statement which in our view applies to the position in these proceedings. The Tribunal Member at first instance has not heard a costs application and has not made costs orders. 2. The appellant may apply to the Tribunal for the costs of the proceedings at first instance in accordance with the orders that were made for that purpose. Costs of the Appeal 1. The appellant's claim for the costs of the Appeal is based on section 60 of the Act which states: '(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.' 1. The appellant submits that there are special circumstances as referred to in section 60(2) and specifically, that the respondent's conduct comes within sections 60(3)(a),(b),(c) and (d). The appellant's submissions conflates its application for the costs at first instance, with its application for the costs of the appeal. 2. There were originally 6 grounds of Appeal. Grounds 1 and 4 were not pressed. Ground 6 was conceded. 3. The Appeal Panel was required to determine grounds 2, 3 and 5. The appellant failed on grounds 2 and 3 and was successful on ground 5. 4. The issue to determine in relation to the Appeal proceedings is whether as required under section 60(3) of the Act 'there are special circumstances warranting an award of costs'. 5. The appellant submits that the respondent: 1. conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings; 2. was responsible for prolonging unreasonably the time taken to complete the proceedings; and 3. made a claim that had no tenable basis in fact or law; 1. In addition the appellant submitted that the nature and complexity of the proceedings should be taken into account. 2. We are unable to agree with the appellant's submissions that there are special circumstances which warrant an award of costs in its favour in the Appeal proceedings. Moreover it appears to us that the appellant's submissions regarding the above criteria relate primarily to the respondent's conduct in the proceedings at first instance. 3. In our view it would be inappropriate to find that special circumstances exist where a respondent concedes a ground of appeal as was the case in these Appeal proceedings when the respondent properly conceded appeal ground 6. 4. The appellant was successful in connection with Appeal ground 5. However we are not persuaded that there are special circumstances associated with this ground of Appeal. Insofar as it may be said that there was some complexity associated with Appeal ground 5, the appellant itself contributed to that complexity as may be seen at [56] [60] [62] [66] [67] [72], [73] of our Appeal decision. The fact that the appellant was successful on Appeal ground 5 is not in itself an indication of special circumstances under section 60 of the Act. Orders 1. For the reasons provided we dismiss the appellant's application for the costs of the Appeal. ********** 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: 21 July 2017