Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dawood v Master Wealth Control Pty Ltd t/as DG Institute (No 2) [2019] NSWCATAP 295 Hearing dates: On the papers Date of orders: 06 December 2019 Decision date: 06 December 2019 Jurisdiction: Appeal Panel Before: L Pearson, Principal Member J McAteer, Senior Member Decision: (1) Pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013, a hearing on the application for costs is dispensed with. (2) The application for a costs order made by the respondent is dismissed. Catchwords: COSTS – whether special circumstances Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Fair Trading Act 1987 Cases Cited: Chalhoub v Astro Real Estate Holding Pty Ltd (No 2) [2018] NSWCATAP 289 Dawood v Master Wealth Control Pty Ltd t/as DG Institute [2019] NSWCATAP 205 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Texts Cited: None cited Category: Costs Parties: Hany Dawood (Appellant) Master Wealth Control Pty Ltd t/as DG Institute (Respondent) Representation: Counsel: J Mack (Respondent) Solicitors: Appellant (Self Represented) DGI Lawyers (Respondent) File Number(s): AP 19/05109 Publication restriction: No Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 18 January 2019 Before: S Smith, General Member File Number(s): GEN 18/34304 REASONS FOR DECISION 1. On 14 August 2019 the Appeal Panel delivered reasons for dismissing an appeal from a decision of the Tribunal to dismiss Mr Dawood's application under the Fair Trading Act 1987 for an order refunding money paid and an order that no further amounts were payable for a real estate scheme: Dawood v Master Wealth Control Pty Ltd t/as DG Institute [2019] NSWCATAP 205. 2. Mr Dawood had applied to the Tribunal for an order that he be paid the amount of $26,000, being $6,000 for the cost of purchasing the Real Estate Rescue program, and $20,000 for the time spent studying the program. At the hearing, Mr Dawood did not press the claim for $20,000. The issue was his claim for a refund of $1,500 paid, and his liability to pay the amount of $4,500 remaining for the total cost of the program at $6,000. The Tribunal dismissed the application for a full refund and ordered Mr Dawood to pay the balance of $4,500. 3. The orders made on 14 August 2019 included orders for the parties to make submissions on any application for an order for costs, those submissions to include submissions on whether the question of costs may be determined on the papers and without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). 4. On 27 August 2019 the respondent to the appeal applied for an order for costs of the appeal. The appellant provided submissions in response on 11 September 2019. Whether a hearing on costs should be dispensed with 1. Section 50 of the NCAT Act relevantly provides: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except: … (c) if the Tribunal makes an order under this section dispensing with a hearing, or … (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4)The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. … 1. The parties made submissions as to whether a hearing on costs was required, and both agreed that it is appropriate to determine the question of costs on the papers. The Appeal Panel is satisfied that the issue of costs can be adequately determined in the absence of the parties by considering the parties' written submissions. The parties would be put to unnecessary expense if a hearing on costs were held. 2. The order under s 50(2) of the NCAT Act has accordingly been made. Whether an order for costs should be made 1. The general rule in relation to costs in the Tribunal is that unless special circumstances are established, the parties pay their own costs: s 60(1) of the NCAT Act. 2. Rule 38 of the Civil and Administrative Tribunal Rules 2014 modifies the application of s 60 in proceedings before the Consumer and Commercial Division of the Tribunal, and rule 38A modifies the position in respect of appeals. Rule 38(2) relevantly provides that despite s 60, the Tribunal may award costs in proceedings in the Consumer and Commercial Division even in the absence of special circumstances, if "the amount claimed or in dispute in the proceedings is more than $10,000". Rule 38A provides that if rule 38 applies, the Appeal Panel for an internal appeal must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal. 3. The parties submit, and the Tribunal agrees, that rules 38 and 38A do not apply and that the applicable costs provision for this appeal is s 60(1) of the NCAT Act. The Tribunal must be satisfied that there are special circumstances that warrant an order for costs of the appeal. 4. To be "special circumstances," circumstances may be out of the ordinary; they need not be extraordinary or exceptional: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11], applying Cripps v G & M Mawson [2006] NSWCA 84 at [60]. 5. Section 60(3) of the NCAT Act lists matters to which the Tribunal may have regard in determining whether there are special circumstances: 60 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. 1. The respondent to the appeal relies on s 60(3)(c) and (e), submitting that the appeal was not based on any grounds capable of being held or maintained in the face of attack or objection, and the grounds of appeal were thus untenable; and the appeal was misconceived and lacking in substance. In dismissing the appeal the Appeal Panel had held that there was no substance to the contention that Mr Dawood was disadvantaged by facing an experienced lawyer at first instance or that there was anything unfair in the conduct of the hearing; there was no error on a question of law demonstrated in the Tribunal preferring the evidence of the respondent to that of Mr Dawood on the central issue of the existence and validity of an irrevocable power of attorney; and there was no error on a question of law demonstrated in the Tribunal's conclusion that DG had not engaged in misleading and deceptive conduct on which Mr Dawood claimed to have relied when entering the contract. The respondent submits that the circumstances that take the appeal out of the ordinary course are that Mr Dawood did not identify any question of law on which the appeal could possibly succeed, and that even when the exercise was undertaken by the Appeal Panel the possible grounds were found not to be available to Mr Dawood. It is also relevant that Mr Dawood did not seek leave to appeal, and nor could the Appeal Panel find any grounds on which such leave could be sought and granted. Mr Dawood has been wholly unsuccessful in the appeal and the appropriate order is that he pay the respondent's costs on an ordinary basis. 2. The appellant submits that no special circumstances exist, relying on Chalhoub v Astro Real Estate Holding Pty Ltd (No 2) [2018] NSWCATAP 289 in which the Appeal Panel had observed at [14] 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". While he did not succeed on the appeal, the appeal was not frivolous, vexatious, misconceived or entirely lacking in substance. The appellant submits that the amounts in dispute were small and it would be disproportionate in such circumstances to award costs. 3. The Appeal Panel is not satisfied that there are special circumstances in the context of this appeal that would justify an award of costs in circumstances where the general rule is that no costs order should be made. While the appellant did not succeed in the appeal, it could not be said that his claim was entirely unarguable or that the position adopted by him was frivolous, vexatious, misconceived or entirely lacking in substance. The fact that the Notice of Appeal did not clearly identify a question of law, and that the Appeal Panel was required to approach the appeal by considering whether in fact any question of law had been raised, does not take this appeal out of the ordinary in circumstances where an appellant is self represented. Neither does the fact that while the appellant did not seek leave to appeal the Appeal Panel considered whether in challenging the findings and conclusions reached by the Tribunal Mr Dawood had asserted a ground on which leave might be granted in accordance with cl 12(1) of Sch 4 to the NCAT Act. There is no suggestion that the appellant misconducted himself in any relevant manner which would justify the exercise of discretion to make a costs order. Accordingly, the application made by the respondent for a costs order in its favour must be refused. Order 1. The Appeal Panel orders: 1. Pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013, a hearing on the application for costs is dispensed with. 2. 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: 06 December 2019