Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Abdel-Messih v Wang (No 2) [2018] NSWCATAP 209 Hearing dates: On the papers Date of orders: 13 September 2018 Decision date: 13 September 2018 Jurisdiction: Appeal Panel Before: G. Sarginson, Senior Member Decision: The application for costs is dismissed. Catchwords: COSTS-Special circumstances---Whether established. Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Legal Profession Uniform Law Application Act 2014 Cases Cited: Abdel-Messih v Wang [2018] NSWCATAP 60 Cachia v Haines [1994] HCA14; (1994) 179 CLR 403 Ellis v The Owners Strata Plan 80605 [2018] NSWCATAP 174 eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 McGinn v Barilla [2018] NSWCATAP 85 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Pentelow v Bell Lawyers Pty Ltd [2018] NSWCA 150 Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41 Category: Costs Parties: Bishoy Abdel-Messih (Appellant) Ledong Wang (Respondent) Representation: In person (Appellant) S. Chu, agent (Respondent). File Number(s): AP 17/38933 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 25 August 2017 Before: P. French, General Member File Number(s): RT 17/16177; RT 17/19334 REASONS FOR DECISION 1. In Abdel-Messih v Wang [2018] NSWCATAP 60, the Appeal Panel of the Tribunal dismissed the appeal of Mr Abel-Messih from a decision of the Tribunal in a tenancy dispute. Relevantly, Mr Abdel-Messih was the tenant and Ms Wang the landlord. A key issue in dispute had been whether the landlord had unreasonably refused consent to Mr Abdel-Messih to sub-let part of the premises. 2. Although the respondent had not been legally represented in the Appeal Panel proceedings or the proceedings at first instance, the respondent had a real estate agent acting for her in the proceedings, and sought to make a costs application. The Appeal Panel (at para [60] of the decision) gave the respondent the opportunity to make submissions on the issue of costs, and provided a timetable for the parties to make submissions. 3. The respondent has made an application for costs in respect of the professional costs of her agent appearing in the Appeal Panel proceedings. Both parties have filed and served written submissions on the issue of costs. 4. Subsequent to the decision of the Appeal Panel in the substantive proceedings being published, Deputy President O'Connor has become unavailable to further preside in the proceedings. Pursuant to s 52 of the Civil and Administrative Tribunal Act 2013 ('the NCAT Act'), a direction has been made reconstituting the Appeal Panel in the costs application to Senior Member Sarginson sitting alone. 5. The Appeal Panel is satisfied that the costs application should be dealt with on the papers, in accordance with s 50 (2) of the NCAT Act. 6. The respondent seeks a lump sum costs order be made for costs in the sum of $3,765. This is comprised of $2,500 for the cost of the agent reviewing the large amount of documents filed and served by the appellant and preparing written submissions (i.e. the professional costs of the agent); $800 for the cost of the agent attending various directions hearings and final hearing; printing costs of $360 for printing approximately 4,500 pages of documents; and $105 for the cost of arranging for an accountant to attend a hearing date in the Tribunal on 28 November 2017. 7. The submissions of the respondent do not contain copies of any tax invoices or make any submissions about how and why the Appeal Panel should make the order for costs. 8. The submissions of the appellant oppose the awarding of costs. Relevantly, the appellant points out that no copy of the managing agency agreement was provided and no invoices to support the costs which the respondent asserts were incurred. The appellant submits that there were no "special circumstances" under s 60 (2) of the NCAT Act to justify the awarding of costs. Relevant Statutory Provisions 1. Section 60 of the NCAT Act states: 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. Reg. 38 of the Civil and Administrative Tribunal Rules 2014 ('the NCAT Rules') states: 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. Reg. 38A of the NCAT Rules states: 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 for 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 this matter, the amount in dispute in the proceedings at first instance did not involve an amount claimed or in dispute exceeding $30,000. Accordingly, the provisions of s 60 of the NCAT apply, and "special circumstances" must be established under s 60 (2) of the NCAT Act to warrant a costs order. Relevant Legal Principles-Costs Applications by a Party Not Legally Represented in Proceedings 1. "Special circumstances" are circumstances out of the ordinary, but not necessarily extraordinary or exceptional (Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]). Whether or not "special circumstances" have been established depends upon the facts and circumstances of the particular case, in the context of the matters for consideration under s 60 (3) of the NCAT Act. 2. If a costs order is made, the Tribunal has the power to make a lump sum order for costs, if it is appropriate to do so. The relevant criteria for whether or not a lump sum costs order should be made is articulated in Ellis v The Owners Strata Plan 80605 [2018] NSWCATAP 174 at [44]-[48]. 3. The respondent is not legally represented in the Appeal Panel proceedings, and was not legally represented in the proceedings at first instance. 4. A party who is self-represented in proceedings and who is not a lawyer or barrister themselves, is generally not entitled to an award for costs other than in respect of disbursements, and the costs of a self-represented litigant for time spent in preparing and conducting an appeal are not "legal costs" (Cachia v Haines [1994] HCA14; (1994) 179 CLR 403 at 411; Pentelow v Bell Lawyers Pty Ltd [2018] NSWCA 150; eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [50]; Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 at [107]-[108]; Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41; McGinn v Barilla [2018] NSWCATAP 85). 5. In Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41 ('Thorpe'), the Appeal Panel held that a self-represented party can recover the type of expenses that they would have been able to recover if they were legally represented in the proceedings, but not expenses that would not be recoverable as disbursements had the party been legally represented, such as child care; travel expenses and accommodation expenses. The Appeal Panel referred to the definition of disbursements as follows (at [21]): "In Dal Pont, Law of Costs, (LexisNexis Butterworth, 3rd ed, 2013) at 1.8, the nature of a disbursement was described as: [A] payment made on behalf of a client. ... Essentially disbursements refer to money which, for the purposes of the ... proceeding, have been actually paid out to other people, such as witnesses, counsel, professional advisers and so forth, and so can be distinguished from "costs" ... that are intended to cover remuneration for the exercise of professional legal skill by a lawyer. ... Expressed another way, these types of disbursements ... are money paid on behalf of a client of a lawyer to a third party that can properly be included in the bill of costs." 1. Further, the Appeal Panel in Thorpe held that the definition of "costs" in s 60 of the NCAT Act should be interpreted in a manner consistent with the definition of "legal costs" in the Legal Profession Uniform Law Application Act 2014 (Thorpe at [16]-[19]). Relevantly, the definition of "legal costs" involves the cost of provision of legal services by a law practice, or the cost of disbursements (Thorpe at [16]). 2. The professional fees of licensed real estate agent representing a landlord in proceedings in the Tribunal are not "legal costs" in respect of the provision of legal services by a law practice. It is also difficult to see how the professional fees of a licensed real estate agent appearing for a landlord in NCAT fall within the definition of disbursements. The costs of photocopying are a type of expense that falls within the definition of disbursements. The payment of witness expenses are also a type of expense that may be recoverable as a disbursement. 3. Ultimately, however, it is unnecessary to finally determine whether the items claimed fall within the parameters of costs theoretically recoverable by the respondent under s 60 of the NCAT Act, as the Appeal Panel is not satisfied the respondent has established that "special circumstances" exist under s 60 (2) of the NCAT Act to warrant a costs order. Have 'Special circumstances' Been Established? 1. By reason of s 60 (1) of the NCAT Act, the starting point is that each party is to pay its own costs of the proceedings. The onus is upon the respondent to establish that there are "special circumstances" in the proceedings to warrant an order for costs. 2. The submission of the respondent on the issue of costs do not refer in any detail as to why there are "special circumstances" to depart from the usual order under s 60 (1) of the NCAT Act that each party pay its own costs by reference to the matters for consideration under s 60 (3) of the NCAT Act. Rather, the submission simply states that the applicant should pay the respondent's costs, without providing any detailed basis as to why there are "special circumstances". Even considering that the Appeal Panel set a word limit for submissions, the onus remains on the respondent to set out why there are "special circumstances". 3. The Appeal Panel is not satisfied "special circumstances" under s 60 (2) of the NCAT Act have been established. As discussed previously, the respondent has not articulated why there are "special circumstances". In any event, the Appeal Panel has considered the matters set out in s 60 (3) of the NCAT Act and is not satisfied there are "special circumstances". 4. The Appeal Panel in the substantive decision commented that the grounds of appeal were broad, and that the numerous documents the appellant filed invited the Appeal Panel to reconsider the whole of the evidence in the proceedings below, which was not an appropriate way to conduct an appeal (at [27]). 5. However, the Appeal Panel must also take into account that the appellant was not legally represented in the appeal, although he has appeared as a party in proceedings in the Tribunal and the Appeal Panel on a number of occasions. 6. Although the appellant raised a number of grounds of appeal and filed a copious amount of documents in support of his grounds of appeal, the Appeal Panel is not satisfied that his conduct in prosecuting the appeal rises to the level of causing unnecessary disadvantage to the respondent; or unreasonably prolonging the Appeal Panel proceedings. Although the appellant was unsuccessful in respect of all of his grounds of appeal, the Appeal Panel is not satisfied that it has been established the grounds of appeal were so manifestly weak; or misconceived; or without any tenable basis in law; or frivolous or vexatious, that the usual order under s 60(1) of the NCAT Act should be departed from. Conclusion 1. The respondent has not established "special circumstances" under s 60 (2) of the NCAT Act, and accordingly the application for costs is dismissed. Orders 1. The application for costs is dismissed. ********** 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: 13 September 2018