Abdel-Messih v Wang [2018] NSWCATAP 185

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Abdel-Messih v Wang [2018] NSWCATAP 185 Hearing dates: On the papers Date of orders: 31 July 2018 Decision date: 31 July 2018 Jurisdiction: Appeal Panel Before: A Bell SC, Senior Member DAC Robertson, Senior Member Decision: (1) Appellant's application for costs dismissed.

(2) No order as to the costs of the appeal. Catchwords: COSTS – proceedings settled without determination, no special circumstances Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Re Minister for Immigration and Ethnic Affairs ex parte Lai Qin (1997) 186 CLR 622 Category: Costs Parties: Bishoy Abdel-Messih (Appellant) Ledong Wang (Respondent) File Number(s): AP 18/15471 Decision under appeal Court or tribunal: NSW Civil & Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 19 March 2018 Before: G Towney, General Member File Number(s): RT 17/38429

Decision under appeal

REASONS FOR DECISION 1. The appellant was a tenant of the respondent in premises in Liverpool Street, Sydney, from 18 August 2016 until July 2018. By the decision the subject of this appeal, the appellant was ordered to pay the landlord the sum of $1,312.87 consisting of: occupation fee in the amount of $462.87 in respect of the period between the termination of the tenancy and the tenant's vacation of the property; $250 in respect of carpet replacement or treatment; $250 for end of lease cleaning; $100 for "dryer occupation and disposal fee"; $140 for swipe key for the garage; and $110 for repair of door damage. 2. The appellant appealed against the order of the Tribunal only insofar as it required that he pay $100 in respect of the "dryer occupation and disposal fee". 3. At the hearing of the appeal, the appellant appeared in person and the landlord was represented by the landlord's managing agent who was contacted by telephone when she failed to appear at the hearing. 4. The Tribunal's findings in relation to the dryer were as follows: The landlord has claimed $640 for occupation fee and disposal of dryer. The dryer was the issue in a separate tribunal matter, finalised on 8 Feb 2017. The landlord reported that the dryer is currently sitting in the enclosed verandah and was not being used. Asked about the expected occupation fee the landlord suggested $5 per day, making a total of $1185. Asked about the costs of disposal, the landlord suggested $400 then $200, saying that they had to pay to dispose of it. The tenant said he wants to pick up the dryer but has been asked to pay $600 occupation fee. The tribunal invited the tenant to make an offer of settlement, and he offered $50. Having considered the evidence before it, including the length of time since the issue of the dryer was dealt with and finalised by the tribunal (being 8 Feb 2017), the inability of the parties to co-ordinate the retrieval of the dryer and that new tenants currently occupy the premises previously rented by the tenant, the tribunal finds disposal to be the best option. The tribunal has looked at Sydney City garbage service, and notes that white goods can be collected each Wednesday if the council is notified on Tuesday… The website notes that the pick up is free, so the only relevant costs would be for the dryer to be transported from the unit to street level for pick up by the council. The tribunal has awarded $100 in this regard. 1. By the time of the appeal hearing the appellant had collected the dryer and the landlord's agent indicated the landlord did not wish to maintain his entitlement to the $100 awarded by the Tribunal member in respect of the dryer. 2. In those circumstances the Appeal Panel made orders by consent varying the orders of the Tribunal to reduce the amount awarded against the appellant by $100 to $1,212.87. 3. After the hearing had effectively concluded, with the telephone connection to the respondent's representative having been terminated, the appellant informed the Appeal Panel that he wished to seek an order for the costs of the appeal. The Appeal Panel indicated to the appellant that if he wished to seek an order for costs he should file written submissions and the Appeal Panel would consider whether to entertain that application. 4. The appellant filed written submissions on 22 June 2018. In those submissions the appellant acknowledged that he was self-represented in bringing the appeal but sought reimbursement from the respondent of the filing fee of $104. 5. Section 60 of the Civil and Administrative Tribunal Act 2013 (NSW) provides: 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. 1. Although rules 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) provide that costs may be awarded in the absence of special circumstances where the amount in issue exceeds $30,000, or the amount in issue exceeds $10,000 and the Tribunal has made an order under clause 10(2) of Schedule 4 to the Act in relation to the proceedings, neither of those circumstances is present in this case. Accordingly, before making an award in respect of the costs of the proceedings, we must be satisfied that there are special circumstances. 2. The appellant submitted that there were special circumstances. He submitted that: "The Respondent had no tenable defence at law and sought to keep the Appellant's dryer through a manifestly hopeless defence." that: "The Respondent did not concede to the success of the Appellant by consent orders, or anything to that effect so as to discontinue the proceeding without the need for the return of the matter and final determination by the Appeal Panel." and that "No step had been taken by the Respondent prior to the conceding of the agent over the phone, on the day of the hearing. This is contrary to the duty to assist the Tribunal in disposing of matters before it in a just, quick and cheap manner." 1. The appellant alleged he had thus been prejudiced by the manner in which the respondent had conducted the proceedings. 2. Having determined for the reasons which follow that there is no basis upon which we could award costs to the appellant and that his application must therefore be dismissed, we have not invited submissions from the respondent. 3. As the appeal was resolved by consent, the appellant's submission that the respondent had no tenable defence at law and was maintaining a manifestly hopeless defence cannot be made out. The Appeal Panel did not hear argument on these matters, there was no need to determine them. 4. Although it is correct to say the respondent did not agree to the appeal being allowed prior to the day of hearing, the appellant has not pointed to any communication on his part with the respondent or his representative which might demonstrate that the appellant had undertaken reasonable endeavours to obtain a consensual resolution of the dispute prior to the hearing. 5. We are not in a position to say that the respondent had failed to comply with his obligation to comply with the duty imposed by s36(3) of the Civil and Administrative Tribunal Act, that is to co-operate with the Tribunal to give effect to the "guiding principle" which is: "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". 6. Even if it were not necessary that we find special circumstances before awarding costs, we would not be persuaded that this was an appropriate case for the award of costs. The appropriate approach to the allocation of costs of proceedings which do not proceed to hearing, because they have been settled or rendered futile before determination, was discussed by McHugh J in Re Minister for Immigration and Ethnic Affairs ex parte Lai Qin (1997) 186 CLR 622 at 624-625 as follows: In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation. … Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in South East Queensland Electricity Board v Australian Telecommunications Commission where his Honour ordered the respondent to pay 80% of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare. If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases. [footnotes omitted] 1. We do not conclude on the basis of the material provided by the appellant that the conduct of the respondent was unreasonable and accordingly we find that, even if it were not necessary to find special circumstances, it would be inappropriate to make an order in respect of the costs of the appeal. 2. Accordingly the appellant's application is dismissed. 3. Our orders are: 1. Appellant's application for costs dismissed. 2. No order as to the costs of the appeal.