Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Long v Antoun's Concrete Pumping Pty Ltd [2019] NSWCATAP 125 Hearing dates: Written submissions Date of orders: 16 May 2019 Decision date: 16 May 2019 Jurisdiction: Appeal Panel Before: The Hon F Marks Principal Member S Thode Principal Member Decision: (1) The application for a costs order made by the appellant for the costs of the appeal is dismissed. (2) The appellant is to pay the third respondent's costs of the appeal assessed in the sum of $3816.14. Catchwords: Costs - unsuccessful appeal proceedings from decision of Consumer and Commercial Division-held section 60 of Civil and Administrative Tribunal Act displaced by Rules 38 and 38 A-appellant ordered to pay costs of respondent Legislation Cited: Civil and Administrative Tribunal Rules 2014 Civil and Administrative Tribunal Act 2013 Cases Cited: Latoudis v Casey [1990] 170 CLR 534 Long v Antoun's Concrete Pumping Pty Ltd [2019] NSWCATAP 56 Oshlak v Richmond River Council [1998] HCA 11 Category: Costs Parties: Margaret Long (Appellant) Antoun's Concrete Pumping Pty Ltd (First Respondent) Chady Antoun (Second Respondent) Metromix Pty Limited (Third Respondent) Representation: Appellant (self-represented) Marque Lawyers Pty Ltd (Third Respondent) File Number(s): AP 18/47308 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 30 October 2018 (substantive decision), 3 December 2018 (costs) Before: DAC Robertson, Senior Member File Number(s): GEN 17/19744 REASONS FOR DECISION 1. In Long v Antoun's Concrete Pumping Pty Ltd [2019] NSWCATAP 56 we dismissed an appeal brought by the appellant Margaret Long from a decision of a Senior Member of the Consumer and Commercial Division. We reserved the question of costs of the appeal. Both the unsuccessful appellant and one of the respondents, the third respondent Metromix Pty Limited, have exercised the liberty to apply and sought a favourable costs order. 2. The appellant filed submissions in support of her application for costs. It is obvious that those submissions misunderstand that the liberty to apply was with respect to the costs of the appeal proceedings only. The Appeal Panel cannot determine the cost to the appellant claimed by her in the substantive proceedings GEN 17/19744. In any event, the appellant was ordered to pay the costs of the first and second respondents of the substantive proceedings and reasons to that effect were published by the Tribunal below on 3 December 2018. The appeal against that costs order was unsuccessful. 3. As the appellant was wholly unsuccessful in the appeal there is no basis for any claim made by her that her costs of prosecuting the appeal, which seem to be confined to disbursements of $14.50, should be paid by the successful respondents. Her claim for costs of the appeal is dismissed accordingly. 4. In respect of the application for costs of the appeal proceedings by Metromix Pty Ltd, the third respondent was not legally represented in the hearing of the proceedings. However, its written submissions in support of its costs application indicate that it retained solicitors firstly to advise it with respect to the appeal itself, and secondly with respect to this application for its costs. There are annexed to its written submissions copies of invoices paid to Marque Lawyers Pty Limited totalling $5451.63. It has indicated that it is prepared to accept on a party-party basis costs the sum of $3816.14 representing a 30% discount to the actual costs paid. We have perused those invoices and they appear, prima facie, to be reasonable. We note that considerable time was expended by the solicitors in reading the voluminous material which the appellant had filed in the appeal proceedings, and to which we made reference in our appeal decision. 5. The amount originally claimed by the appellant against the respondent Metromix Pty Ltd in the underlying substantive proceedings was the sum of $40,000. 6. By reason of the provisions of Rule 38 (2) of the Civil and Administrative Tribunal Rules the ordinary rules which apply to the awarding of costs in proceedings before this Tribunal (see section 60 of the Civil and Administrative Tribunal Act) are displaced. Rule 38 is in the following terms; 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. It is also necessary to refer to the provisions of Rule 38 A which is in the following terms; 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. It follows from the combined effect of Rules 38 and 38 A that the Appeal Panel has jurisdiction and power to award costs in favour of the third respondent against the appellant. 2. Rule 38 does not specify the factors the Appeal Panel must take into account in exercising the discretion to award costs. In these circumstances the appropriate starting point is the well-established position at common law; that is, that the purpose of making a costs order is to provide compensation to the party in whose favour the order is made for the expense the party has been put to in prosecuting or defending legal proceedings. In general terms, this means that a party who is successful is entitled to an order for costs in its favour, subject to exceptions generally involving misconduct on the part of that party: Latoudis v Casey [1990] 170 CLR 534; Oshlak v Richmond River Council [1998] HCA 11. 3. In the circumstances of these proceedings, the appellant was wholly unsuccessful in her appeal against the third respondent. The third respondent, successful in the appeal, did not engage in any conduct which would disentitle it to the benefit of a costs order in its favour nor are there any other circumstances which would lead to the same result. It follows that it should have the benefit of a costs order and we propose to order accordingly. Furthermore, in all the circumstances, and given the relatively modest amount involved we propose to adopt the invitation extended by the third respondent to assess costs in the sum of $3816.14. Orders 1. We make the following orders; 1. The application for a costs order made by the appellant is dismissed. 2. The appellant is to pay the third respondent's costs of the appeal assessed in the sum of $3816.14. ********** 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. 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: 16 May 2019