Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ingate v Andrews [2018] NSWCATAP 170 Hearing dates: On the papers after 22 June 2018 Date of orders: 12 July 2018 Decision date: 12 July 2018 Jurisdiction: Appeal Panel Before: Hennessy LCM, Deputy President D Goldstein, Senior Member Decision: (1) The Respondent's application for costs is refused. Catchwords: COSTS – costs of internal appeal in proceedings in the Consumer and Commercial Division of NCAT – whether the amount claimed or in dispute is more than $30,000 – whether there are special circumstances warranting an award of costs Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW), s60 Civil and Administrative Tribunal Rules 2014, r 38, r 38A Cases Cited: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 Ingate v Andrews [2018] NSWCATAP 99 Category: Costs Parties: Stephen Ingate (First Appellant) Gabrielle Ingate (Second Appellant) Dixon John Andrews (Respondent) Representation: Counsel: R Freeman (Respondent) Solicitors: Christopher C Freeman & Co (Respondent) File Number(s): AP 17/42418 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2017] NSWCATCD Date of Decision: 1 September 2017 Before: P Briggs File Number(s): HB 15/67471, HB 16/38768, HB 16/30612, HB 16/31085 REASON FOR DECISION Background 1. Mr Andrews is an architect and licenced builder who built a residence for Mr and Ms Ingate. Mr Andrews applied to the Tribunal for the Ingates to pay him $39,724.21 for certain disputed variations to the building works. The Tribunal made several orders including that the Ingates pay Mr Andrews $28,029 and that any submissions on costs be made within certain time frames. The Ingates appealed to the Appeal Panel from these two orders. In relation to the order to pay $28,029, the Ingates sought an order that Mr Andrews repay $19,682.00. The Appeal Panel dismissed the appeal. 2. On the issue of costs before the Tribunal, the Appeal Panel decided that the Tribunal at first instance should deal with any application for costs. We understand that the Tribunal has made a costs order and that neither party has appealed from that decision. 3. On the issue of the costs of the appeal, the Appeal Panel gave the parties permission to apply for costs. The builder, Mr Andrews, has applied for the costs of the appeal. He submitted that 'the usual rule that costs follow the event' should apply. Alternatively, he submitted that 'special circumstances arise having regard to the way the appeal was presented and prosecuted'. The Ingates submitted that the amount claimed or in dispute in the proceedings is less than $30,000 which means that each party should pay their own costs. According to the Ingates, there are no 'special circumstances' warranting an award of costs. Costs rule in Consumer and Commercial Division proceedings 1. The general costs rule for proceedings in NCAT is that each party is to pay their own costs: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 60(1). The Tribunal has a discretion to order that one party pay the costs of another party where 'special circumstances' warrant the making of such an order. NCAT Act, s 60(2). A variation to this general rule is relevant to these proceedings. In proceedings in the Consumer and Commercial Division of the Tribunal, the Tribunal may award costs, even in the absence of special circumstances, if the amount claimed or in dispute is more than $30,000: Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules), cl 38(2)(b). The Appeal Panel must apply that rule when deciding whether to award costs in relation to an internal appeal from proceedings in the Consumer and Commercial Division: NCAT Rules, cl 38A(2). Issues 1. The first issue is whether the amount claimed or in dispute is more than $30,000. (Clause 38(2)(a) of the NCAT Rules does not apply because the Tribunal has not made an order under clause 10(2) of Schedule 4 to the NCAT Act in relation to the proceedings.) If the amount in dispute is less than $30,000, the second issue is whether there are special circumstances warranting an award of costs. If there are, the third issue is whether costs should be awarded as a lump sum or as agreed or assessed. Is the amount in dispute more than $30,000? 1. The amount claimed or in dispute is the amount in dispute on appeal, not the amount in dispute in the proceedings at first instance: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [57]. In this case, the amount in dispute on appeal is $19,682.24. If the appeal had been successful, the Ingates were seeking an order from the Appeal Panel that Mr Andrews pay them that amount: Ingate v Andrews [2018] NSWCATAP 99 at [9]. As the amount in dispute is not more than $30,000, each party is to pay their own costs unless there are special circumstances warranting an award of costs. Are there special circumstances warranting an award of costs? 1. In determining whether there are special circumstances, the Tribunal may have regard to the circumstances listed in s 60(3) of the NCAT Act. Those circumstances include "whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings"; "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" and "any other matter the Tribunal considers relevant". The circumstances do not have to be "extraordinary or exceptional". It suffices if they are "out of the ordinary": Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 Santow JA at [60] (Mason P and Brownie AJA agreeing) dealing with a very similar provision in s 88(1) of the Administrative Decisions Tribunal Act 1997 (NSW). 2. The Appeal Panel made the following observations, at [17]: The appeal has been conducted by the first Appellant, Mr Ingate. Though he is a practising lawyer, the grounds of appeal were not presented in a way that clearly identified questions of law. The statement of grounds is a narrative more in the nature of a set of submissions. The Respondent objected to consideration of large parts of the notice of appeal on the basis that no grounds of law were clearly identified. In our view, this objection was soundly made. 1. The Appeal Panel then identified four points which purported to raise questions of law. In relation to grounds 1 and 2 the Appeal Panel concluded at [24] that the Tribunal had "proceeded in an orthodox manner in dealing with the claims made as ones brought under the building contract" and dismissed those grounds. 2. Ground 3 was the central issue in the appeal as it involved the question of whether the Tribunal correctly understood the law relating to restitution and quantum meruit. The Appeal Panel found at [47] that claims for quantum meruit depend on the person receiving the benefit of the work accepting the work without paying the agreed amount. The Appeal Panel went on to find at [48], [52] and [59] that 'acceptance' in that sense was in the mind of the Tribunal Member even though no specific finding was made on that issue. This ground of appeal was dismissed. 3. The final ground was dismissed on the basis that it had not been sufficiently particularised. 4. The circumstances which Mr Andrews identifies as constituting 'special circumstances' warranting an award of costs can be summarised as follows: 1. the Appeal Panel found at [17] that, although Mr Ingate is a practising lawyer, the grounds of appeal did not clearly identify any questions of law; 2. Mr Andrews was put to the unnecessary expense of responding to the grounds of appeal and the application for leave to appeal; 3. grounds 1 and 2, as identified by the Appeal Panel, "failed by a simple application of the orthodox manner of construing commercial dealings and contracts which suggest that these grounds of appeal were without merit"; 4. late concessions on the part of Mr Ingate in relation to ground 3 put Mr Andrews to unnecessary expense; and 5. in relation to ground 4 Mr Andrews was put to unnecessary expense because Mr Ingate did not set out the manner in which the Tribunal had erred. 1. Mr Andrews did not identify any provision of s 60(3) under which these circumstances may be regarded as 'special'. However, we understand his submission to be that an award of costs is warranted on at least two bases. First, because of the relative weakness of the appeal and, perhaps, that it had no tenable basis in fact or law: NCAT Act, s 60(3)(c). Second, because he was unnecessarily disadvantaged because of the late concessions in relation to ground 3: NCAT Act, s 60(3)(a). 2. Mr Ingate's response was that despite the fact that he is a solicitor, he practices in the area of conveyancing. We accept that Mr Ingate was self-represented and have considered the application for costs on that basis. 3. Mr Ingate outlined the history of the appeal emphasising that Mr Andrews had made short, general submissions. However, the manner in which Mr Andrews conducted the proceedings in not in issue. The question is whether there are special circumstances justifying an order for costs based on any of the matters listed in s 60(3) of the NCAT Act. 4. Mr Ingate submitted that the fact that the Appeal Panel dismissed the appeal does not mean that the grounds of appeal were unreasonable or that he conducted the proceedings in a way that unnecessarily disadvantaged Mr Andrews. There were no delays and the appeal was heard within the time frame allocated. 5. The Appeal Panel found that the grounds of appeal were "a narrative more in the nature of a set of submissions" and accepted Mr Andrews' submission that no questions of law were clearly identified. Grounds 1 and 2 as identified by the Appeal Panel were relatively weak grounds of appeal. Ground 4 was not sufficiently particularised. Ground 3, described by the Appeal Panel as raising the central issue in the appeal, was the only ground which raised issues that the Appeal Panel considered worthy of serious consideration. Despite the Ingates' expressing this ground of appeal as covering many of the principles of quantum meruit, the argument was ultimately confined to the 'acceptance' issue. 6. Many self-represented parties, indeed many lawyers, find it difficult to articulate questions of law. The Appeal Panel found that at least one question of law could be identified from the submissions. Although further concessions were made in relation to that ground of appeal at the hearing, the question itself had merit. We accept that the remaining grounds of appeal were weak. Mr Andrews was put to unnecessary expense in responding to those matters and was, in that sense, unnecessarily disadvantaged. However, the existence of any of the circumstances identified in s 60(3) does not necessarily mean that costs should be awarded. It is always a question of degree. In this case, Mr Ingate was self-represented. The weakness of all but one of the grounds of appeal and the fact that Mr Andrews had to respond to some grounds of appeal that had no merit or were ultimately withdrawn, do not warrant an award of costs. 7. As we have decided not to award costs, there is no need to consider the final issue as to whether costs should be ordered on a lump sum basis. Order 1. The Respondent's application for costs is refused. Relevant legislative provisions 60 COSTS (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. Costs in Consumer and Commercial Division of the Tribunal 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 v 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. ********** ​ 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: 12 July 2018