Civil and Administrative Tribunal New South Wales Medium Neutral Citation: SHH Ltd v City of Parramatta Council; SHH Ltd v City of Parramatta Council [2019] NSWCATAP 131 Hearing dates: 9 May 2019 Date of orders: 28 May 2019 Decision date: 28 May 2019 Jurisdiction: Appeal Panel Before: D Cowdroy OAM QC ADCJ, Principal Member D A C Robertson, Senior Member Decision: AP 19/07450: 1. Leave to appeal the decision of the Tribunal in proceedings COM 18/44358 is refused. 2. The appeal is dismissed AP 19/11824 1. Extend the time for commencement of the appeal pursuant to section 41 of the New South Wales Civil and Administrative Tribunal Act to 8 March 2019; 2. Leave to appeal the decision of the Tribunal in proceedings GEN 18/09402 is refused. 3. Uphold the appeal in part; 4. Vary order 2 made by the Tribunal in proceedings GEN 18/09402 on 18 October 2018 so as to read: 2. SHH Ltd must pay the City of Parramatta Council's costs of and incidental to these proceedings on the ordinary basis, such costs if not agreed 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, and not to exceed $5000. Orders in both Appeals 5. Any application in respect of the costs of either appeal to be made by written submissions filed and served within 14 days of the date of publication of this decision. Such submissions should address the question whether the application for costs can be dealt with on the papers and without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act. 6. If any party files submissions in accordance with order 5 above the other parties may file and serve submissions in response within a further 14 days. Such submissions should address the question whether the application for costs can be dealt with on the papers and without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act. Catchwords: LEASES AND TENANCIES – retail and commercial tenancies legislation - licence by second respondent to first respondent of land for temporary purposes – first respondent entering into sub-licence with appellant – head licence terminated – notice given to terminate sub-licence – appellant claiming to have rights to remain in occupation - appellant alleging that the sub-licence did not contain all the relevant provisions – no evidence to support contention – whether mediation was required – whether dispute resolution process was required before orders for termination of sub-licence could be made – appellant claiming that the sub-licence constituted a retail shop lease under the Retail Leases Act – sub-licence capable of comprising a retail shop lease as defined – permitted use under sub-licence did not constitute a use contained in Schedule 1 of the Retail Leases Act – termination of sub-licence valid. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Fair Trading Act 1987 (NSW) Retail Leases Act 1994 (NSW) Cases Cited: BHP Billiton Ltd v Dunning [2013) NSWCA 421 Collins v Urban [2014] NSWCATAP 17 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Moweno Pty Ltd v Stratis Promotions [2002] NSWSC 1151 Moweno Pty Ltd v Stratis Promotions Pty Ltd [2003] NSWCA 376 Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 Thompson v Easterbrook [1951] 83 CLR 467 Category: Principal judgment Parties: AP 19/07450 SHH Ltd (Appellant) City of Parramatta Council (First Respondent) New South Wales Land and Housing Corporation (Second Respondent) AP 19/11824 SHH Ltd (Appellant) City of Parramatta Council (Respondent) Representation: Solicitors: Sparke Helmore (First Respondent) HWL Ebsworth (Second Respondent) File Number(s): AP 19/07450; AP 19/11824 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Date of Decision: 15 January 2019 Before: J Smith, Tribunal Member File Number(s): COM 18/44358; COM 18/44348 REASONS FOR DECISION 1. These two appeals were heard together by the Appeal Panel on 9 May 2019. History 1. The underlying facts are essentially common to both appeals. The New South Wales Land and Housing Corporation ("the corporation") is the registered proprietor of land known as 9 Albert Road Parramatta being the whole of the land on certificate of title folio identifier 1/817483 ("the land"). 2. By deed dated 21 August 2012 the corporation entered into a licence agreement with the City of Parramatta Council (the council) in respect of the land. The licence was granted for a period of two calendar months commencing on 10 August 2012 and ending on 5 October 2012. 3. Clause 14 of the agreement provided that if the council's occupation continued after the expiry of the two months term, the licence would continue as a monthly licence only. Specifically it provided: "Such Licence may be determined by one (1) months notice in writing from either party to the other given at any time and to expire on any day." 1. On 14 September 2012 the appellant ("SHH") entered into an agreement with the council described as "Pop Up Parramatta". This agreement granted to SHH a sub-licence to use an area described as "the Licensed Area and any Common Area" "in accordance with the terms of this Participation Agreement". The recital continued: "The Administering Body currently has a licence to use the Licensed Area and any Common Area from the Owner, as set out in the Licence Agreement". 1. The "Licensed Area" was defined in the Pop Up agreement as "the area set out in the plan attached as Annexure A to the Participation Agreement". The Term "Participation Agreement" is defined as: "Participation Agreement" means this agreement together with the Participation Letter and any schedule or annexure to those documents." 1. The Participation Letter referred to in that definition was written by the council and addressed to SHH. The letter set out the terms upon which the sub-licence was granted and its term. It stated that the council would grant a sub-licence to occupy the Licensed Area for a period of one month (identified as the "initial term") commencing on 14 September 2012 and continuing until 14 October 2012 "on a rolling basis" unless earlier terminated. The following was also contained in the letter: "As you know, the Licensed Area is "in transition" and is currently available for use pending redevelopment or redeployment by the Owner. Accordingly, we may terminate our agreement with [30] days written notice to you". 1. Clause 22 of the Participation Agreement also made provision for termination of the agreement. Relevantly, clause 22.1 provided: – "Either Party may terminate this Participation Agreement at any time during the Term by giving a Termination Notice to the other party". 1. The word "Term" was defined in clause 1.24 of the Participation Agreement as "The Initial Term and any Holding Over Period". 2. Clause 1.9 defined "Holding Over Period as "The period which commences on the expiry of the Initial Term and continues until expiry of the Notice Period". 3. One of the annexures to the Participation Letter was a document described as "Annexure A Project Proposal". 4. The Project Proposal described SHH as being the creator of hybrid artworks and supporting development of hybrid art by commissioning new artists and artworks. 5. The Participation Letter stated a number of SHH's "key obligations under the Participation Agreement", including that the Licensed Area was to be used only "for the Permitted Use as described in your Project Proposal" and for no other use without the council's prior written approval. Clause 6.1 of the Participation Agreement also provided: "The Program Participant must not, without the Administering Body's prior written consent, use any part of the Licensed Area or common areas for any use other than the Permitted Use." Termination 1. By letter dated 18 October 2017 the council gave a notice of termination of the Participation Agreement to SHH in accordance with clause 22.1 of that agreement. As a result of representations made to it by SHH, by letter dated 24 January 2018 the council advised SHH that it had negotiated confirmation from the corporation that the termination was extended until 28 February 2018, when the head licence expired. Proceedings: GEN 18/09402 1. SHH sought to challenge the termination of the Participation Agreement. It commenced proceedings before the Tribunal seeking orders restraining the council from terminating the sub-licence, and damages from the council on the basis that the council had breached the Fair Trading Act 1987 (NSW). SHH alleged that the council's termination of the sub-licence was 'retaliatory' in respect of complaints which had been made by SHH against council employees. 2. This claim was determined on 10 September 2018. The Tribunal found that the council's termination of the Participation Agreement was valid. Further, the Tribunal found that the council was under no obligation to refrain from a retaliatory termination since clause 22.1 allowed for the termination of the agreement on 30 days written notice. 3. The Tribunal found that the termination notice was not in any event retaliatory but that, rather, the agreement was terminated because the head licensor terminated the council's licence, under which the council had granted a sub-licence to SHH. The Tribunal found that it was because of that action by the head licensor that the council terminated the agreement. 4. The Tribunal dismissed the application and made provision for the parties to make any claim for costs. The council made application for its costs of the application and, by a decision dated 19 October 2018, the Tribunal ordered SHH to pay the council's costs on the ordinary basis as agreed or assessed. Proceedings COM 18/44348 and COM 18/44358 1. On 15 October 2018 SHH instituted proceedings in the Tribunal (seeking both an interim order and final relief pursuant to the Retail Leases Act 1992 (NSW) (RLA)) against both the council and the corporation alleging that it had the benefit of a retail shop lease which it was conducting on the Licensed Area. That claim came before the Tribunal on 15 January 2019. The Tribunal found that SHH's right to occupy the Licensed Area was contained wholly within the Participation Agreement. The Tribunal accepted that the Participation Agreement was capable of being regarded as a retail shop lease provided that it met the criteria for a retail shop lease as set out in the RLA and in particular that the premises fell within the definition of "retail shop". 2. "Retail Shop" is defined in Section 3 of the RLA as: Retail shop means premises that: (a) are used, or proposed to be used, wholly or predominantly for the carrying on of one or more of the businesses prescribed for the purposes of this paragraph (whether or not in a retail shopping centre), or (b) are used, or proposed to be used, for the carrying on of any business (whether or not a business prescribed for the purposes of paragraph (a)) in a retail shopping centre. 1. It was not suggested the relevant premises were in a retail shopping centre. 2. No regulations have been made prescribing businesses for the purposes of paragraph (a) of the definition, but clause 17(f) of Schedule 3 to the RLA provides that, until regulations are made for that purpose, the businesses specified in Schedule 1 to the RLA are prescribed for the purposes of the paragraph. SHH asserted that its activities constituted the carrying on of two of the businesses listed in Schedule 1, that is "Art Gallery" and "Amusement and Entertainment services". 3. The Tribunal found that the Participation Agreement permitted only the use set out in the Project Proposal. The Project Proposal stated that SHH's objective was to support the development of hybrid art by commissioning new artists and artworks. The Tribunal also noted that no other use is permitted under the Participation Agreement without the prior written consent of the council. 4. Whilst SHH claimed that the predominant use for which SHH utilized the premises was that of an art gallery, the Tribunal held that the actual usage to which the premises are put is not determinative of the question of what was the agreed usage. 5. The Tribunal referred to the decisions of the High Court in Thompson v Easterbrook (1951) 83 CLR 467 and of Barrett J in Moweno Pty Ltd v Stratis Promotions [2002] NSWSC 1151 and held that "the purpose for which the right of occupation is granted must therefore be sought in the terms of the grant as embodied in the agreement". 6. The Tribunal held that, even if the premises had been used predominantly as an art gallery with the consent of the council, the description of the permitted use in the Participation Agreement did not fall within any of the categories of retail shop listed in Schedule 1 of the RLA and that, accordingly, the claim should be dismissed. Appeals 1. The appellant appeals from each decision. 2. The appellant challenges the dismissal of its proceedings in both matters. The appellant claims that the findings of the Tribunal members should be set aside. Further, the appellant claims that the claims made by it should have been referred to mediation as a pre-requisite to litigation. The appellant also claims that the Tribunal refused to hear or deal with an application regarding the council's "false and misleading statements which breach NCAT Act 2013, Part 5 Division 1, section 71". 3. Each of the appellant's notices of appeal incorporated numerous and discursive grounds of appeal. 4. The grounds in appeal under AP 19/07450, the appeal from the decision in COM 18/44358, conveniently referred to as the Retail Leases Act Appeal, may be summarised as follows: 1. the Participation Agreement (also known as the "Pop-Up Agreement"), is "overridden" by the provisions of the RLA, section 7; 2. the activities carried out by the appellant comprised those of a retail shop; 3. the definition of permitted use contained in the Participation Agreement is not determinative of the use; 4. the uses which were in fact carried on by the appellant extended to activities such as how to create your own garden; creation of puppets; how to do magic; how to make balloon animals; how to make simple healthy foods; how to create music; and how to create films. 1. In that appeal the appellant also made submissions to the effect that the Participation Agreement was not the whole agreement and that the appellant had rights beyond the agreement. 2. In appeal number AP 19/11824, the appeal from the decision in GEN 18/09402, conveniently referred to as the Fair Trading Act Appeal, the appellant's main ground of appeal was that the council's action to terminate the Participation Agreement was retaliatory and therefore invalid. 3. The appellant also asserted that the Tribunal erred in concluding that the permitted use was set out in the Project Proposal which was Annexure A to the Participation Letter and challenged the Tribunal's decision on costs on the bases that there were not special circumstances and that the Tribunal should have restricted the award of costs to an amount of $5,000 by reason of an interlocutory order which permitted the council to be legally represented but capped the costs which the council might claim if successful at $5,000 "unless an application is made under clause 10 of the Schedule 4 of the Civil and Administrative Tribunal Act". Observations The Retail Leases Act Appeal AP 19/07450 1. In its decision in proceedings COM 18/44358 (the subject of the Retail Leases Act Appeal AP 19/07450) the Tribunal, as a preliminary determination before the commencement of the hearing, considered and rejected an application by SHH for "the imposition of a penalty pursuant to the Civil and Administrative Tribunal Act s 71 for allegedly false and misleading statements". 2. Section 71 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) provides: A person must not, in any proceedings or application to the Tribunal, provide any information, or make any statement, to the Tribunal knowing that the information or statement is false or misleading in a material respect. Maximum penalty: 50 penalty units or imprisonment for 12 months, or both. 1. The Tribunal dismissed the application because the Tribunal has no jurisdiction with respect to proceedings for offences against the NCAT Act. 2. The Tribunal was clearly correct in doing so. Section 76 of the NCAT Act provides that proceedings for an offence under that Act are to be dealt with before the Local Court. 3. SHH's appeal in this respect must be rejected. 4. In respect of the claim that the area occupied under sub-licence by the appellant constituted a retail shop lease, the appellant has pointed to no evidence which could lead the Appeal Panel to conclude that the premises were used as a "retail shop" as defined In Schedule 1 to the RLA. Annexure A to the Participation Letter specifically sets out the activities in which the appellant was permitted to undertake. At its highest, the activities could be said to involve the business of a production studio. The Tribunal member in proceedings COM 18/44358 observed that the intention of the parties as to the use of the land is to be gleaned from the parties' agreement: see Thompson v Easterbrook [1951] 83 CLR 467. Clause 6.1 of the agreement provided that the parties must not, without the written consent of the council, use any part of such premises for any use other than the permitted use. 5. The appellant maintained before the Tribunal in proceedings COM 18/44358 that the Participation Agreement did not contain all the terms of the arrangement by which it occupied the Licensed Area. The Tribunal member in those proceedings found that there was no evidence to support such a contention. Before the Appeal Panel, the appellant made the same submission. However the Appeal Panel was not directed to any evidence which could lead to a different conclusion than that the only agreement between the parties which governed their relationship was the Participation Agreement. If the alleged additional term was related to the use of the subject premises, it would have constituted a variation to the Participation Agreement. There was no evidence before the Tribunal of any such variation and accordingly the terms of the Participation Agreement prevail: see Moweno Pty Ltd v Stratis Promotions Pty Ltd [2003] NSWCA 376. The Fair Trading Act Appeal AP 19/11824 1. The appellant claimed that there was evidence of retaliation. The evidence before the Tribunal (in proceedings GEN 18/09402, the subject of the Fair Trading Act Appeal) included a statement of Bindy Begg dated 25 July 2018. Ms Begg is the Service Manager, Property Services and Space Management of the Council. Her statement establishes that relations between the appellant, the council and the corporation had become difficult and that numerous complaints had been made by the appellant. The detail provided shows that, for example, the council was prevented from gaining access to the premises for the purpose of essential maintenance. It appears that the complaints commenced during 2017. 2. The notice terminating the sub-licence agreement, served by the council on SHH on 18 October 2017, stated that the reason for termination was that the head licensor (the corporation) had given notice of termination of the head licence. The evidence before the Tribunal included a copy of notice from the corporation to the council dated 3 October 2017 giving notice of termination of the head licence with effect from 31 January 2018. 3. Ms Begg gave evidence confirming that the reason for the termination of the sub-licence was the termination of the head licence. 4. The Tribunal found that the evidence of Ms Begg should be accepted and that the Participation Agreement was terminated solely because the head licensor had given notice of termination of the council's licence. 5. The Appeal Panel accepts that complaints were made by the appellant concerning the conduct of the council. However, we were referred to no evidence which could establish that the termination of the Participation Agreement resulted from anything other than the fact that council had received notification from the corporation of the termination of the head licence to the council. The action taken by council to then give notice to the appellant was entirely appropriate, since the council would have no right to permit the sub licensee (the appellant) to remain in occupation once the head licence ceased to exist. 6. In any event, we agree with the Tribunal that even if the appellant had established that the termination by the council was in retaliation for the appellant having complained about the conduct of council officers, that would not have rendered the termination invalid or given the appellant any right to relief. The Participation Agreement permitted the council to terminate at any time on 30 days' notice for any reason. A retaliatory termination would have been a valid termination. 7. With regard to mediation, the appellant had made a claim before the Tribunal member in proceedings GEN 18/09402 that the hearing be adjourned to allow mediation to take place. That application was refused. The Tribunal member stated the reasons for his refusal to grant an adjournment to enable mediation to take place. In summary, the refusal was based upon a long history of directions, and extensions of time in relation to directions, made for the preparation of the hearing before the Tribunal and the fact that the appellant had been at informed as early as 31 May 2018 that the application was to be listed for a hearing after 16 August 2018. The Tribunal member found that the parties had been given ample time to prepare their respective cases and to appear. The Tribunal Member also declined the request for an adjournment "having regard to the fact that the applicant's representative told me that the adjournment was for a period of several months". 8. Shortly before the appeal date, the appellant again sought an adjournment and an order that the parties attend mediation. That application was refused by the Appeal Panel. It was refused because the long history of disputes between the parties demonstrated that there had been ample time, if the parties wished, to proceed to mediation before the hearing before the Tribunal member commenced and, as the evidence disclosed that the parties had been polarised for many months, a mediation was unlikely to achieve an outcome. There is no requirement under the Participation Agreement that mediation is a prerequisite to termination or litigation. Leave to appeal 1. Since the appellant does not allege any error of law but rather claims that the decisions were not fair and equitable, the appellant requires the leave of the Appeal Panel to pursue its appeals: see section 80 (2) (b) of the NCAT Act. 2. As each of the appeals is from the Consumer and Commercial Division of the Tribunal, clause 12 of Schedule 4 to the NCAT Act is applicable. That clause provides that the Appeal Panel may grant leave to appeal only: "if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) The decision of the Tribunal under appeal was not fair and equitable, or (b) The decision of the Tribunal under appeal was against the weight of evidence, or (c) Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being deal with). 1. The principles applicable to the grant of leave to appeal were considered by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17. At [84] the Appeal Panel stated the general principles as follows: an applicant for leave must demonstrate something more than that the primary decision-maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact. Leave will usually only be granted in matters involving issues of principle. Other examples which might result in a grant of leave include matters that involve: questions of public importance; an injustice which is reasonably clear in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral; a factual error which was unreasonably arrived at but mistaken; or the Tribunal having gone about the fact-finding process in an unorthodox manner or in such a way that it was likely to produce an unfair result. 2. Further, at [76]-[79], the Appeal Panel accepted that a substantial miscarriage of justice may have been suffered in the circumstances referred to in cl 12 (1) (a), (b), or (c) of Schedule 4 to the Act where there was a significant possibility, or a chance which is fairly open, that a different and more favourable result would have been achieved for the appellant had the relevant circumstances referred to in those sub-paragraphs not occurred. 3. A grant of leave lies in the discretion of the Appeal Panel. The exercise of that discretion is guided by the decision in BHP Billiton Ltd v Dunning [2013) NSWCA 421 at [19] and also the leading authorities in this Tribunal namely Collins v Urban (above) and Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]. 4. The Appeal Panel is satisfied that, even if leave were granted, the appellant would have no prospect of success in its appeals, subject to one matter which will be referred to below. The Appeal Panel is satisfied that the rights of the appellant were defined wholly by the provisions of the Participation Agreement, that the Participation Agreement was the relevant agreement by which the appellant was granted a sub-licence, that the sub-licence was not granted for the purpose of carrying on a business listed in Schedule 1 to the RLA and was not a retail shop lease for the purposes of the RLA, and that the council was acting entirely within its rights when it issued the notice of termination under clause 22.1. 5. For the above reasons, the Appeal Panel does not grant leave to appeal in respect of either appeal. 6. The reservation referred to at [54] above arises in respect of the Fair Trading Act Appeal (AP 19/11824). As noted above, an order had been made on 31 May 2018 imposing a cap of $5,000 in respect of any order for costs made in favour of the respondent in the proceedings before the Tribunal member. The relevant portion of the order, made by Deputy President Westgarth on that day, records: "The applicant's application for the leave previously given for the first respondent to have legal representation to be revoked is refused. The first respondent's leave to have legal representation is continued on the condition that any claim for costs brought by the first respondent against the applicant (in the event that an adverse costs order is made in favour of the first respondent) will not exceed $5000 unless an application is made under clause 10 of schedule 4 Of the Civil and Administrative Tribunal Act 2013." 1. On 19 October 2018, orders for costs were made on the basis of written submissions received from the parties. The Tribunal found that there were "special circumstances" warranting an order for costs in favour of the respondent because the appellant's case was obviously untenable and had no possibility of success. The Tribunal also found (at [21] of the decision on costs) that, because an application had been made by the respondent for an order pursuant to clause 10 of schedule 4, the cap on costs imposed by the Deputy President's order did not apply. The orders made by the Tribunal required that SHH pay the Council's costs on the ordinary basis, to be assessed if not agreed. The Tribunal did not limit the amount of costs to $5,000 or any other figure. The appellant's notice of appeal challenged the Tribunal's decision in respect of costs both on the basis that there were not special circumstances and to the extent that the Tribunal failed to apply the cap on costs. 2. We see no error in the Tribunal's conclusion that there were special circumstances warranting an award of costs. The Member noted that the reasons set out in the principal decision indicated that the appellant's case was obviously untenable and had no possibility of success. The Member noted that "the termination claim is unsustainable because of the plain terms of the sub-licence agreement and the fact that the respondent had complied with the notice provisions". The Member noted that other claims by the appellant (which were not the subject of appeal) were also unsupported by evidence or inevitably failed because of the terms of licence agreement or as a consequence of the conclusion that the licence agreement had been properly terminated. 3. However in our view, in failing to apply the cap on costs set out in the Deputy President's order of 31 May 2018, the Tribunal misapplied and misconstrued the Deputy President's order. 4. Clause 10 of Schedule 4 to the Act provides: (1) The Tribunal may exercise the powers conferred by this clause if the Tribunal is of the opinion that a party in any proceedings for the exercise of a Division function is conducting the proceedings in such a way that unreasonably disadvantages another party in the proceedings by any conduct (including by failing to comply with an order or direction of the Tribunal). (2) The Tribunal may: (a) if the party causing the disadvantage is the applicant—order that the proceedings (or part of the proceedings) be dismissed or struck out, or (b) if the party causing the disadvantage is not the applicant: (i) determine the proceedings (or part of the proceedings) in favour of the applicant and make any appropriate orders, or (ii) order that the party causing the disadvantage be struck out of the proceedings (or part of the proceedings). (3) Before making any order under subclause (2) against a party, the Tribunal is to have regard to the following: (a) the extent to which the party is familiar with the procedures of the Tribunal, (b) the party's capacity to understand, and act on, a direction of the Tribunal, (c) whether the party suffers from a disability, (d) whether the party is acting deliberately in failing to comply with the Tribunal's directions. (4) The provisions of this clause are in addition to, and do not limit, the provisions of section 55 (Dismissal of proceedings) of this Act. 1. In our view the Deputy President's order does not provide that the cap will not be applicable in any case where an application is made for an order under clause 10. Such a construction of the order would permit the cap to be avoided by the making of such an application regardless of whether there was any reasonable basis for the application. We do not consider that the order could have been intended to operate in that way. 2. In our view the order, properly construed, provides that the cap will not apply if an application is made under clause 10 and an order is made on that application - ie an order dismissing or striking out the proceedings because: "the Tribunal is of the opinion that a party in any proceedings for the exercise of a Division function is conducting the proceedings in such a way that unreasonably disadvantages another party in the proceedings by any conduct (including by failing to comply with an order or direction of the Tribunal)". 1. Mr Christensen, who appeared at the appeal hearing on behalf of the council did not submit that the Deputy President's order should not be given that construction. 2. As no order was made on the council's application under clause 10 of Schedule 4, the cap should have been applied and the orders made on the costs application limited accordingly. 3. The correct construction of an order of the Tribunal, like the correct construction of a statute or a contract, is a question of law. Accordingly, by misconstruing the Deputy President's order and failing to apply the cap on costs, the Tribunal made an error of law and the appellant does not require leave to rely upon the ground of appeal which challenges the Tribunal's orders in respect of costs. 4. We observe that the Fair Trading Act Appeal was filed on 8 March 2019, which was, both in respect of the substantive decision of 10 September 2018 and in respect of the costs decision of 19 October 2018, outside the period of 28 days from notification of the decision within which rule 25(4)(c) of the Civil and Administrative Tribunal Rules (2014) (NSW) requires that an appeal be lodged. Accordingly the appellant requires an extension of time to bring the Fair Trading Act Appeal. 5. The principles governing the grant of an extension of time were considered by the Tribunal in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. Since we have found that the appeal should succeed in respect of the failure to limit the costs order made on 19 October 2018, and as the respondent does not suggest that any real prejudice has been suffered because of the appellant's failure to abide by the time constraints, the Appeal Panel, in the exercise of its discretion under s 41 of the NCAT Act, grants an extension of time to bring the Fair Trading Act Appeal. 6. Accordingly, in respect of the Fair Trading Act appeal (AP 19/11824) the Appeal Panel will vary order 2 of the Tribunal made on 19 October 2018 in respect of the costs of proceedings GEN 18/09402 so as to read: SHH Ltd must pay the City of Parramatta Council's costs of and incidental to these proceedings on the ordinary basis, such costs if not agreed 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, and not to exceed $5000. Orders Orders in appeal AP 19/07450: 1. Leave to appeal the decision of the Tribunal in proceedings COM 18/44358 is refused. 2. The appeal is dismissed Orders in appeal AP 19/11824 1. Extend the time for commencement of the appeal pursuant to section 41 of the New South Wales Civil and Administrative Tribunal Act to 8 March 2019; 2. Leave to appeal the decision of the Tribunal in proceedings GEN 18/09402 is refused. 3. Uphold the appeal in part; 4. Vary order 2 made by the Tribunal in proceedings GEN 18/09402 on 18 October 2018 so as to read: 1. SHH Ltd must pay the City of Parramatta Council's costs of and incidental to these proceedings on the ordinary basis, such costs if not agreed 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, and not to exceed $5000. Orders in both Appeals 1. Any application in respect of the costs of either appeal to be made by written submissions filed and served within 14 days of the date of publication of this decision. Such submissions should address the question whether the application for costs can be dealt with on the papers and without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act. 2. If either party files submissions in accordance with order 5 above the other parties may file and serve submissions in response within a further 14 days. Such submissions should address the question whether the application for costs can be dealt with on the papers and without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act. ********** 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: 28 May 2019