Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Pampering Patisseries Pty Ltd v Fanos [2018] NSWCATAP 125 Hearing dates: On the papers Date of orders: 24 May 2018 Decision date: 24 May 2018 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member J McAteer, Senior Member Decision: (1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013 (NSW), the Appeal Panel dispenses with a hearing of the application for costs made by the respondent. (2) Each party is to pay their own costs of the appeal. Catchwords: COSTS - Application by unsuccessful respondent based on issues Legislation Cited: Civil and Administrative Tribunal Act, 2013 (NSW) Civil and Administrative Tribunal Rules, 2014 (NSW) Cases Cited: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 Bostick Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Leung v Alexakis (No 2) [2018] NSWCATAP 78 Pampering Patisseries Pty Ltd v Fanos [2018] NSWCATAP 94 Thompson v Chapman [2016] NSWCATAP 6 Texts Cited: Nil Category: Costs Parties: Pampering Patisseries Pty Ltd (Appellant) Georgina Fanos (Respondent) Representation: A Ke, Public Officer (Appellant) J Pearson, Counsel (Respondent) Solicitors: Gramelis Attorneys (Respondent) File Number(s): AP 17/53012 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 8 November 2017 Before: T Simon, Senior Member File Number(s): COM 17/23839 and COM 17/27924 reasons for decision Introduction 1. On 23 April 2018 the Appeal Panel made orders allowing, in part, an appeal in respect of a retail lease dispute. The Appeal Panel published reasons for decision being Pampering Patisseries Pty Ltd v Fanos [2018] NSWCATAP 94 (principal decision). 2. The appeal raised a number of grounds, including in respect of unconscionable conduct, the nature and extent of the obligation to pay for outgoings and the obligations of the respondent landlord to carry out "Lessor's Works" under the retail lease. In addition, an application to adduce fresh evidence was made. 3. The matters about which complaint was made in the appeal put in dispute an original order made in favour of the respondent of $6954.33, together with a substantial claim for damages to which the appellant contended it was entitled by reason of the unconscionable conduct and breach of agreement claims. While the precise amount of damages claimed was unspecified, it was clear to the Appeal Panel that if the appellant was successful the amount in dispute in the appeal would be greater than $30,000: see principal decision at [30]. 4. Ultimately, the Appeal Panel upheld the appeal in respect of one ground only. That ground related to the liability of the appellant to pay for an annual fire safety statement. The Tribunal at first instance had allowed the respondent an amount of $275.00 being the cost of obtaining the annual fire safety statement. For the reasons expressed at [110] and following of the principal decision, the Appeal Panel determine the Tribunal was in error and reduced the amount of the original award in favour of the respondent from $6954.32 to $6879.32, a reduction of $275.00: at [123] of the principal decision. 5. Otherwise, the Appeal Panel dismissed the appeal. 6. In doing so, the Appeal Panel indicated a preliminary view that each party should pay their own costs. The Appeal Panel gave liberty to the parties to apply for a different costs order. 7. The respondent made an application for costs by letter dated 24 April 2018. Subsequently, detailed written submissions dated 2 May 2018 were provided to the Appeal Panel. 8. The appellant provided submissions in reply dated 7 May 2018. The respondent advised the Appeal Panel by email dated 9 May 2018 that she did not seek to reply to the appellant's submissions. 9. The respondents' submissions can be summarised as follows: 1. The amount in issue exceeded $30,000. 2. The combined effect of rr 38 and 38A of the Civil and Administrative Tribunal Rules, 2014 (NSW) (Rules) means that there is a general discretion to award costs. 3. The respondent relies on the decisions in Thompson v Chapman [2016] NSWCATAP 6 and Leung v Alexakis (No 2) [2018] NSWCATAP 78 and says that while there is a general discretion on costs, having regard to the relative success of the parties on particular issues, an order should be made in its favour because the "respondent was ultimately the successful party". In making this submission, the respondent relied on the decision of the Court of Appeal of the Supreme Court of New South Wales in Bostick Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38]. 1. The respondent also submitted that an order should be made pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act) dispensing with a hearing. In this regard the appellant accepted that the cost issue could be adequately determined in the absence of the parties based on written submissions. 2. In reply, the appellant accepted that an order should be made dispensing with a hearing. 3. The submissions of the appellant were difficult to follow. The appellant appeared to submit that rr 38 and r 38A did not apply. Rather, it was necessary to have regard to special circumstances. The appellant referred to costs of an expert witness, apparently obtained for the purpose of the hearing at first instance, a matter which does not appear relevant to the issue of costs on the appeal, there being no new evidence adduced at the hearing of the appeal. Be that as it may, the effect of the decisions made by the appellant is at the appeal was successful and the original order from the proceedings at first instance was various. Therefore no costs order should be made in favour of the respondent. Consideration 1. As both parties agree, an order should be made under s 50(2) of the NCAT Act, dispensing with a hearing. In this regard the Appeal Panel is satisfied that the application for costs by the respondent can be adequately dealt with without a hearing. 2. The Appeal Panel is also satisfied that r 38(2)(b) applied to the proceedings at first instance because "the amount claimed or in dispute in the proceedings is more than $30,000". Consequently, by reason of r 38A, r 38 applies to the appeal proceedings. 3. As indicated in the principal decision, the amount in issue in the appeal exceeded $30,000. Therefore r 38(2)(b) applies in respect of costs for the appeal: see Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25. 4. As stated in Thompson at [67] and following, there is a general discretion as to costs, the starting point being that the successful party should be entitled to their costs. 5. In the present case, the appellant was (partially) successful. However, the respondent relied on the statement of the Court of Appeal in Bostick and said that the Appeal Panel should have regard to the issues in the case, the fact that the appellant failed on most issues and therefore an order for costs should be made in favour of the respondent. In this regard the order sought was that the appellant pay the whole of the respondent costs of the appeal. 6. In the present case we do not accept an order for costs should be made in favour of the respondent on the terms sought. Rather, we are satisfied that the appropriate exercise the discretion is that there be no order for costs, consistent with what we said in the principal decision. 7. Our reasons are as follows. 8. The appellant was not represented by a lawyer. Rather, it was represented by its Public Officer, Ms Ke. She also prepared the submissions for the appellant in relation to the costs application. 9. While the issues raised by the appellant were quite diverse, and the appellant only succeeded to the limited extent set out above, the manner in which the appeal was conducted did not give rise to any undue length of hearing. In this regard the appeal had a call over and was listed for hearing for half a day, although the hearing extended into the afternoon. Otherwise, the preparation and hearing of the appeal proceeded in accordance with the usual practice of the Appeal Panel. As such, it could not be said that the case was exceptional in the time spent at hearing. 10. The substantial issues raised in the appeal involved construction of the lease between the parties, the obligations concerning fit out at the commencement of the lease and the liability of the appellant to pay the respondent outgoings. As such, it was inevitable that the parties and the Appeal Panel would be required to examine the content of the lease and that the parties would need to make submissions about its proper construction. 11. The respondent relied on the decision of the Court of Appeal in Bostick. In addition to the matter identified at [17] of the respondents submissions, the Court of Appeal said at [38]: If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 at [27]. Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: State of New South Wales v Stanley [2007] NSWCA 330 at [18] per Hislop J (with whom Beazley and Tobias JJA agreed). 1. Having regard to the matters we have set out above, we are not satisfied that there has been any relevant increase in the time taken in the hearing. Nor are we satisfied that the dissection of issues raised in the appeal should lead to a result that the respondent should obtain an order in its favour that the whole of its costs of the appeal be paid by the appellant in circumstances where the appellant has been successful. 2. Rather, it seems to us that no order for costs should be made in the present circumstances. This is sufficient to reflect the relative success of the parties and to have regard to the fact that the issues raised related to the proper construction of the lease, a matter requiring both parties to consider its terms and make submissions to the Appeal Panel about its effect. Orders 1. The Appeal Panel makes the following orders: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013 (NSW), the Appeal Panel dispenses with a hearing of the application for costs made by the respondent. 2. Each party is to pay their own 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: 24 May 2018