Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Singh v Fobupu Pty Ltd [2018] NSWCATAP 127 Hearing dates: On the papers Date of orders: 25 May 2018 Decision date: 25 May 2018 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member Decision: 1. The hearing is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013. 2. The applicant is to pay the costs of the respondents, as agreed or assessed, on an ordinary basis. Catchwords: COSTS- Civil and Administrative Tribunal Rules, 2014- r 38 and r 38A- discretion to award- application for leave to appeal dismissed. Legislation Cited: Civil and Administrative Tribunal Act, 2013 (NSW) Civil and Administrative Tribunal Rules, 2014 (NSW) Cases Cited: Bonita v Shen [2016] NSWCATAP 159 Latoudis v Casey (1990) 170 CLR 534 Oshlack v Richmond River Council (1998) 193 CLR 72 Thompson v Chapman [2016] NSWCATAP 6 Category: Costs Parties: Gurgit Singh (Applicant) Fobupo Pty Ltd (First Respondent) Ghulam Akbar Khan (Second Respondent) Samina Khan (Third Respondent) Representation: Solicitors: Appellant: In person McGrath, Dicembre & Company (Respondents) File Number(s): AP 18/15303 Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 06 March 2018 Before: T Simon, Senior Member File Number(s): COM 17/53291 reasons for decision Introduction 1. On 18 April 2018 the Appeal Panel dismissed an application by Mr Singh (applicant) by which the applicant sought leave to appeal an interlocutory decision of the Tribunal made on 6 March 2018. That decision was to make directions for the preparation for hearing of application COM17/53291 filed in the Consumer and Commercial Division. 2. The dispute to which the directions related concerned a retail lease of a property at Kingswood. The applicant for leave to appeal is the applicant in the proceedings at first instance. The respondents are the respondents to the application. 3. The Appeal Panel gave Ex Tempore reasons for decision to dismiss the application for leave to appeal. A request for written reasons was subsequently made. 4. In dismissing the application, the Appeal Panel made directions for the respondents to file and serve submissions on their costs application by 19 April 2018. Directions were also made for the applicant to file submissions in reply. The directions required the parties to file submissions as to whether or not 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 5. The respondents' submissions in support of the costs application were forwarded to the Tribunal by letter dated 19 April 2018. The applicant filed submissions in reply by email dated 23 April 2018. In turn, the respondents filed submissions in reply by letter dated 24 April 2018. Submissions 1. The respondents did not oppose the Tribunal making an order to decide the costs application "on the papers". The applicant said at [94] of his submissions: Unless the Tribunal is inclined to hear more or further from the appellant, that is the appellant's submissions on costs. 1. The Appeal Panel is satisfied the parties have had an opportunity to make submissions on the issue of costs and that this matter can be resolved without a hearing. Further, the Appeal Panel is satisfied that a further hearing is likely to result in additional costs and, in the circumstances, is both unnecessary and unwarranted. Accordingly, an order will be made to dispense with the hearing under s 50(2) of the NCAT Act. 2. The respondents seek costs because they were successful and the application for leave to appeal was dismissed. 3. The respondents said they do not need to establish special circumstances under s 60 of the NCAT Act because r 38 of the Civil and Administrative Tribunal Rules, 2014 (NSW) (Rules) applies to the proceedings at first instance. The respondents say that the applicant "raised and presented an issue concerning payment of rental of some $800,000.00" and that he was seeking damages sustained as a result of damage to the premises and an amount of $85,000.00 which he paid to the respondents "to avoid a threatened lockout in 2010". 4. Having referred to various decisions of the Appeal Panel, including Bonita v Shen [2016] NSWCATAP 159 and the decisions of the High Court in Latoudis v Casey (1990) 170 CLR 534 and Oshlack v Richmond River Council (1998) 193 CLR 72 the respondents said that an order for costs should be made in their favour as they were successful. In addition, the respondents rely on correspondence dated 13 April 2018 in which they invited the applicant to withdraw his application by 13 April 2018, in which case they would not pursue a claim for costs. 5. In reply, the applicant seems to suggest that the "foundation principle is set out in section 60 of the (NCAT) Act". That is, it was necessary for the Appeal Panel to be satisfied that special circumstances exist in order to enliven its power to make an order for costs. 6. In short, the applicant says that the respondent had failed to demonstrate any special circumstances and that no costs order should be made. 7. However, this submission is at odds with [31] of the applicants submissions where he says: That is not to say that rule 38 does not exist and apply. Nonetheless, the landscape is, the starting point is section 60 (1). It is the respondent who has the hill to climb. Sub paragraph 2 specifies the costs may be awarded if there are special circumstances warranting an award of costs. None of the specified situations are extensively canvassed by the respondents and the (applicant) contends none of them apply. 1. Later in his submissions, the applicant continues at [69]: A further consideration in relation to rule 38 is whether, as a costs consideration, given that it is dependent on the quantum of the principal claim, it only applies to costs on the principle claim and a final determination. Whether it can apply to what is an Appellate process of an interlocutory style is arguable and not established by the respondents. The respondents carry the burden on this issue and have failed to address it. The (applicant) contends this limitation applies. No power is shown to exist under rule 38 toward cost on a leave to appeal application. 1. In making this submission, the applicant referred to the content of r 38, the circumstances in which it applies and that there is no relevant monetary value attributable to a leave application. 2. As to the question of what is the amount in issue in the proceedings at first instance, the following submissions of the applicant (using the numbering in those submissions) are relevant: 39. The starting point was, the respondents sought to impose terms inconsistent with the now pleaded contract. They then sought to repossess to achieve their ends. The appellant was forced to institute these proceedings to protect his position. The interim order initially achieve (sic) that result. As Member Charles observed, the parties positions are diametrically opposed. The (applicant) contends cash payment of $800,000 plus and the respondents' denied payments of $800,000 plus. Someone is lying. … 48. The critical point here is, someone is lying about $800,000 plus. Nothing constitute special circumstances with that issue is still pending. That predominant consideration, in the circumstances, demands to be resolved before peripheral and interlocutory discretions are considered, let alone decided. … 50. Significantly, Member Charles was aware on 23rd of January that the issue pertaining to the $800,000 plus unpaid and the instance of somebody lying before the Tribunal had a predominant significance. … 68. Remarkably, the money limits, $10,000, $30,000 are indicative of the usual range of considerations. Here, the evidence will address and decisions on the evidence will determine a point which has an implication as to the amount in the order of $1,000,000. As a matter presently sets, that issue of $1,000,000 is pending one way or the other. 1. In part, the matters to which I have referred above were put forward to support a contention that the Tribunal had no jurisdiction to hear and determine the applicant's claim due to the amount in issue. This seems somewhat at odds with the fact the applicant has commenced and maintained his proceedings in the Consumer and Commercial Division. 2. In relation to what orders should be made, the applicant contends no order for costs should be made, or alternatively an order should be made that the costs should be costs in the cause. Otherwise, the applicant submits that "(a)ny other order would be providing to the respondents, a reward to a litigant for lying in the Tribunal processes". Consideration 1. Rule 38A of the Rules is relevant to determining the present application for costs. This rule provides: 38A Costs in internal appeals (1) This rule applies to an internal appeal lodged on or after 1 January 2016 if the provisions that applied to the determination of costs in the proceedings of the Tribunal at first instance (the first instance costs provisions) differed from those set out in section 60 of the Act because of the operation of: (a) enabling legislation, or (b) the Division Schedule of the Division of the Tribunal concerned, or (c) the procedural rules. (2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal. 1. In the present case, the relevant procedural rule which might apply to the proceedings at first instance is r 38. That rule provides: 38 Costs in Consumer and Commercial Division of the Tribunal (1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if: (a) the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under clause 10 (2) of Schedule 4 to the Act in relation to the proceedings, or (b) the amount claimed or in dispute in the proceedings is more than $30,000. 1. Where that rule applies, there is a general discretion to award costs, the usual position being that a successful party is entitled to their costs: see eg Oshlack, Latoudis, Bonita and Thompson v Chapman [2016] NSWCATAP 6. 2. The applicant says the rule does not apply because the application to the Appeal Panel was an application to seek leave to appeal an interlocutory decision. In these circumstances, so the applicant said, r 38 is not engaged because it does not operate in connection with interlocutory decisions or appeals from such decisions. 3. In my opinion, this submission has no substance. The terms of r 38 are clear. That is, "the Tribunal may award costs in proceedings (emphasis added) in which this rule applies even in the absence of special circumstances warranting such an award for costs if … the amount claimed or in dispute in the proceedings (emphasis added) is more than $30,000". 4. There is no dichotomy between those parts of the proceedings which relate to interlocutory applications and orders which might be made during the course of the proceedings and those parts of the proceedings that might finally dispose of a party's rights. If the Legislature had intended that the power to award costs in the proceedings was limited to those circumstances where final orders are made, it would have said so. There is no logical reason to limit the power given to the Tribunal under r 38 in the manner suggested by the applicant. 5. Further, there is no question that, despite section 60, the rules may make provision for matters of "practice and procedure" which are different to those in the NCAT Act. In this regard s 35 of the NCAT Act provides: Each of the provisions of this Part is subject to enabling legislation and the procedural rules. 1. Section 60 is part of Part 4 Practice and Procedure of the NCAT Act to which s 35 applies. Consequently, r 38(2) applies despite s 60 if the amount claimed or in issue is more than $30,000: see Bonita at [41] and following. 2. In my view, there is no question that the amount claimed or in dispute in the proceedings at first instance is more than $30,000. This is made clear from the applicant's submissions in the present application for costs, some of which have been set out above. Even though the amounts claimed in the original application are described as "TBA", which I understand to mean "to be advised", there can be no doubt that the amount in dispute in the proceedings is more than $30,000 whether or not an express claim has been made in the original application. In this regard the comments of the Appeal Panel in Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [48] and following are relevant, namely that the wealth of the parties could change by more than $30,000. 3. It follows from s 38A that because the "first instance costs provisions … differed from those set out in s 60 of the NCAT Act … the Appeal Panel for an internal appeal … must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal" 4. An internal appeal is one to which s 32 of the NCAT Act applies. In the present case that is an appeal in respect of a decision by the Tribunal in proceedings for a general decision. An internal appeal includes an application for leave to appeal, whether brought under s 80(2)(a) or (b), that is whether an internal appeal is made in respect of an interlocutory decision or any other kind of decision not involving a question of law. 5. The respondents were successful in relation to the application for leave to appeal. Having regard to the authorities to which they refer, there is a discretion to award costs. The usual rule is that the successful party should be entitled to recover their costs. There is no need to establish special circumstances to be entitled to such an award. 6. The applicant says no order for costs should be made or, alternatively, costs should be costs in the cause. However, no significant reasons are offered as to why this course should be adopted. 7. Whether or not the applicant is ultimately successful in his claim is not a reason why the respondents should be denied the costs in respect of an unsuccessful attempt to seek leave to appeal. The applicant sought leave to appeal the directions made on 6 March 2018 despite the fact that those orders had been varied by the time the application for leave to appeal was heard. He did so despite the respondents offering to allow him to withdraw the appeal on or before 13 April 2018. These matters support an order against him to compensate the successful parties for costs incurred. 8. None of the matters put forward by the applicant justify a departure from the usual rule. 9. On the other hand, the respondent suggested at one point in their submissions that a special order for costs should be made, namely on an indemnity basis. In my opinion, particularly as the applicant was self-represented and having regard to the lateness of the offer, the circumstances do not justify the making of a special order for costs. 10. It follows that an order should be made in favour of the respondents that the applicant pay the respondents' costs of the application for leave to appeal, as agreed or assessed, on an ordinary basis. Orders 1. The Appeal Panel makes the following order: 1. The hearing is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013 (NSW). 2. The applicant is to pay the costs of the respondents, as agreed or assessed, on an ordinary basis. ********** 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: 25 May 2018