Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Abdel-Messih v Azzi (No 2) [2018] NSWCATAP 1 Hearing dates: 4 October 2017 Date of orders: 03 January 2018 Decision date: 03 January 2018 Jurisdiction: Appeal Panel Before: G K Burton SC, Senior Member T Simon, Senior Member Decision: 1. Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW), dispense with a hearing on the question of costs. 2. Make no order as to costs of the appeal. Catchwords: Residential tenancy - breach – sub-lease – termination – stay of possession – special costs orders Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Oshlack v Richmond River Council (1998) 193 CLR 72, [1998] HCA 11 Category: Costs Parties: Bishoy Abdel-Messih (Appellant) Tony Azzi (Respondent) Representation: Appellant in person J Foong (Agent for Respondent) File Number(s): AP17/32963 Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Commercial and Consumer Division Date of Decision: 19 July 2017 Before: S Hennings, Member File Number(s): RT17/08746 reasons for decision Background 1. The primary orders were made, with accompanying written reasons, on 16 November 2017. 2. Those primary orders dismissed the appeal, with that order effective immediately on publication. 3. The primary orders also made provision for written submissions on costs, including whether costs could be determined on the existing material and any further written material provided in accordance with those orders. 4. No further written material has been provided by either party. 5. In the primary reasons on 16 November 2017 we said the following about costs, with the landlord being the respondent to the appeal and the tenant being the appellant, and the reference to CATA being to the Civil and Administrative Tribunal Act 2013 (NSW) and to RTA being to the Residential Tenancies Act 2010 (NSW): "52. The landlord in his reply to the appeal sought costs. The landlord was represented by an agent at the hearing but there is some indication from their content that the reply to appeal and concise reply submissions were prepared with legal assistance, which may be recoverable on an assessment if a costs order was made. 53. Section 60 of CATA requires the Tribunal to be satisfied that there are special circumstances warranting an award of costs. This rule does not alter for proceedings in the Commercial and Consumer Division and on appeal from decisions of that Division for a claim below $30,000: Civil and Administrative Tribunal Rules 2014 (NSW) rules 38, 38A. 54. CATA s 60(3) sets outs out considerations to which the Tribunal may have regard when determining whether or not there are special circumstances warranting an award of costs. The Tribunal considers that the tenant prima facie ought to pay the costs of the appeal on the indemnity basis, taking into account the considerations in the following paragraphs of s 60(3): (b) the tenant 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 claims that have no tenable basis in law; (e) the appeal proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance; (f) the tenant has failed to comply with the duty imposed by CATA s 36(3), which requires the parties to co-operate with the Tribunal to give effect to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings and for that purpose to participate in the processes of the Tribunal and comply with directions and orders of the Tribunal. 55. In summary, the prima facie position is reached based on the matters set out in the foregoing reasons: (1) All the appeal grounds were simply dealt with as they were misconceived in the way the appeal was initiated and conducted. (2) At least one of the appeal grounds was not directly raised in the notice of appeal. (3) Appeal Panel directions were not adhered to in seeking the transcript of the primary hearing if the tenant wanted it and the absence of timely transcript was then, without a satisfactory explanation for that non-adherence, sought to be used to justify an adjournment sought belatedly and without notice during the appeal hearing. (4) The tenant did not disclose in his argument to the Tribunal the presence in the landlord's initiating application of a matter (reliance upon RTA s 123 as an order sought) which directly undercut an appeal ground persisted in by the tenant and made this aspect of the primary proceedings as well as the appeal proceedings hopeless. (5) The tenant sought to raise an appeal on a question of fact and credit – the landlord's alleged consent to a particular sub-tenant - without properly seeking leave to do so. The tenant's written submissions and oral argument on this alleged issue severely attacked the credit of the landlord's agent without articulating a proper basis for that attack. (6) The tenant's written submissions and oral argument, in their detailed reference to case law indicated a basis of legal knowledge, and aspects of the tenant's material submitted on appeal showed previous appearances in the Tribunal and a detailed knowledge of the provisions of the RTA and CATA, yet the tenant in argument at the appeal hearing sought to minimise his knowledge that he could have asked at the primary hearing for an adjournment if, as he alleged in argument, he was caught by surprise on a matter of fact (alleged absence of consent to the particular sub-tenant). (7) The tenant's written submissions were unnecessarily prolix and did not concisely address the real issues in dispute on the appeal. (8) The tenant's initiating of an appeal which should never have been initiated in light of the misconceived grounds on which it was initiated and conducted unnecessarily prolonged the final determination of the proceedings. (9) The foregoing support the basis for award of costs on the indemnity basis since they disclose relevant unreasonable conduct in connection with the conduct of the proceedings: Oshlack v Richmond River Council (1998) 193 CLR 72, [1998] HCA 11. 56. The Tribunal will make directions to give the tenant an opportunity to put before it written submissions which deals with why the Tribunal ought not to make an order that the tenant pay the costs of the appeal as agreed or assessed on the indemnity basis or, in the alternative, on the ordinary basis. 57.The written submissions ought also to deal with whether the Appeal Panel may dispense with a hearing and determine the matter of costs on the papers." 1. Pursuant to CATA s 50, and having given the parties an opportunity to make written submissions about an oral hearing on costs (to the extent that s 50 requires such an opportunity in relation to ancillary matters such as costs), we are satisfied that costs can be adequately determined in the absence of the parties by considering existing material and dispense with a hearing on costs. 2. We have been provided with nothing further that changes the prima facie view we had reached and expressed in our primary reasons as to why the appellant tenant should pay the respondent landlord's costs of the appeal as agreed or assessed on the indemnity basis. 3. We would make that order for those reasons, which have been repeated here for ease of reference, if the landlord had confirmed, under the directions, that there was sufficient evidence of incurrence of some legal costs sufficient to go to an assessor (absent agreement on those costs). 4. However, having received nothing from the landlord, we consider that the indication that we inferred, from their content, that the reply to appeal and concise reply submissions were prepared with legal assistance is not in itself sufficiently demonstrative that there are legal costs to leave to an assessment. 5. Although we remain of the view that the tenant should pay any costs of the appeal on the indemnity basis, there is no utility in making such an order. Order 1. Pursuant to s50 of the Civil and Administrative Tribunal Act 2013 (NSW), dispense with a hearing on the question of costs. 2. Make no order as to costs of the appeal. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar ********** 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: 03 January 2018