Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chalhoub v Astro Real Estate Holding Pty Ltd (No 2) [2018] NSWCATAP 289 Hearing dates: On the papers Date of orders: 30 November 2018 Decision date: 30 November 2018 Jurisdiction: Appeal Panel Before: The Hon F Marks, Principal Member L Wilson, Senior Member Decision: The application for a costs order made by the respondent is dismissed. Catchwords: Appeal proceedings- Successful respondent sought costs order- Special circumstances not established-Costs order refused Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Chalhoub v Astro Real Estate Holding Pty Ltd [2018] NSWCATAP 217 Texts Cited: Nil Category: Costs Parties: Antoun Chalhoub (Appellant) Astro Real Estate Holding Pty Ltd (Respondent) Representation: Solicitors: A Chalhoub (Self Represented) (Appellant) Low Doherty & Stratford (Respondent) File Number(s): AP18/30187 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 19 June 2018 Before: S Smith General Member File Number(s): GEN 17/45779 reasons for decision Background 1. In Chalhoub v Astro Real Estate Holding Pty Ltd [2018] NSWCATAP 217 we dismissed an appeal brought by Antoun Chalhoub, as appellant from a decision of the Tribunal which had awarded the respondent to the appeal, Astro Real Estate Holding Pty Ltd, commission on the sale of a house. That house had been jointly owned by the appellant and his then wife. 2. The factual background to both the underlying and the appeal proceedings is fully set out in our decision dismissing the appeal. It is sufficient for present purposes to note that the circumstances in which the respondent claimed commission and was ultimately successful were somewhat unusual. The appellant had, through his own resources, found the persons who became the ultimate purchasers. The respondent real estate agent had initially negotiated an exclusive sales agreement which permitted it to claim commission if a sale was effected whether or not it introduced the ultimate purchasers to the property. That exclusive agency agreement had terminated at the time that the appellant located the purchasers. However, they did not proceed at that stage, but did contract to purchase the property after the respondent had secured an "extension" of the exclusive sales agreement. It was the evidence of the appellant that the principal of the respondent, a Mr Singh had studiously avoided informing him of the names of the ultimate purchasers and continued to present documents for him to sign with the names of the purchasers left blank. Ultimately the names of the purchasers were revealed to the solicitors acting for the appellant and his wife. 3. The appellant was at all times outraged at the prospect that he would be compelled to pay his share of the commission to the respondent agent when he himself had introduced the purchasers to the property. Despite this, however, the respondent was successful at first instance and again on appeal in obtaining an order against the appellant for the payment of the commission. The reasons are contained in our decision. 4. The respondent has now sought an order for costs against the appellant, and these reasons determine that application. The statutory context 1. Entitlement to costs is governed by section 60 of the Civil and Administrative Tribunal Act ("the Act"). That section is in the following terms; 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. It will be seen that the prima facie position is that costs are not to be awarded unless, in the exercise of a discretion the Tribunal is satisfied that "special circumstances" exist which would warrant displacing that prima facie position. In so determining we are informed by the provisions of section 60 (3). Consideration 1. The respondent did not seek any costs order referable to the underlying proceedings and we are concerned only with the costs of the appeal. In written submissions the respondent relied on the fact that it was wholly successful in resisting the appeal. It was asserted, relying on our conclusions, that the appeal was without merit and that this justified the making of a costs order. Presumably, this aspect of the submissions is directed to the provisions of section 60 (3) (c) and (e). In addition, the respondent submitted that the appellant had acted "unconscionably" in asserting certain factual matters which had no basis because they were contrary to a written statement which he had provided as referred to in [9] of our decision. 2. The respondent also relied on certain aspects of the conduct of the appellant in the underlying proceedings. However, in this regard, we do not apprehend that given that the appellant was at all stages self represented that he engaged in any conduct in the underlying proceedings which would in some way impact upon our consideration of whether costs should be awarded in these appeal proceedings. 3. In his written submissions on costs the respondent's solicitor said; "The above represents the respondent's submissions. The respondent does not wish to be further heard in respect of the application for costs." The parties have been provided with an opportunity to make written submissions and have done so. Because the respondent did not wish to be heard further, and in view of the outcome of this costs application, we have determined that it is appropriate to dispense with a hearing of the costs application under section 50(2) of the Act and the matter will be determined on the basis of the written submissions. 4. In his written submissions in reply the appellant continued to highlight what he considered to be an unjust and inequitable outcome of the proceedings (we have used our own description of the manner in which he characterised the outcome). 5. We approach this matter by considering whether there are "special circumstances" which pertain to these appeal proceedings being matters which would not normally be encountered in proceedings of this kind, and ascertaining whether those special circumstances would justify an award of costs in circumstances where the general rule is that no costs order should be made, given the matters referred to in section 60(3). 6. In determining these proceedings we commence our consideration having regard to the underlying and persistent contention of the appellant that it was unfair and unconscionable for the respondent to have claimed commission on the sale of the property in circumstances where the respondent had not introduced the purchasers to the property, had renegotiated for an extension of an exclusive sales contract, had represented to the appellant that he had a number of interested buyers, none of whom ultimately purchased the property, and had persistently avoided, in his view, informing him of the names of the ultimate purchasers because Mr Singh knew that the appellant would not want to pay him commission on a sale to these persons. Although we ultimately held that the respondent was entitled to the payment of commission essentially because of the provisions of the exclusive sales agreement, it cannot be said that the position adopted by the appellant was frivolous, vexatious, misconceived or entirely lacking in substance. 7. Nor can there be any suggestion that the appellant misconducted himself in any relevant manner which would justify the exercise of discretion to make a costs order. 8. We observe that consumers who are parties in proceedings before the Consumer and Commercial Division of this Tribunal are often passionate about their respective positions and the merits of their claims. This is one of those proceedings. It follows that we are not prepared to characterise the circumstances pertaining to these appeal proceedings as being "special" such as to justify the making of a costs order. Accordingly, the application made by the respondent for a costs order in its favour must be refused. Order 1. The application for a costs order made by the respondent 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: 30 November 2018