Civil and Administrative Tribunal New South Wales Medium Neutral Citation: NACE Consulting Pty Ltd v Sharp [2020] NSWCATAP 40 Hearing dates: On the papers Date of orders: 10 March 2020 Decision date: 10 March 2020 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President Decision: (1) The Appellant is to pay the Respondent's costs of the appeal in an amount as agreed, or as assessed. (2) A hearing on the question of costs is dispensed with. Catchwords: COSTS ON APPEAL - costs in the Consumer and Commercial Division, Rules 38 and 38A Legislation Cited: Civil & Administrative Tribunal Act 2013 (NSW) Civil & Administrative Tribunal Rules 2014 Cases Cited: None cited Texts Cited: None cited Category: Costs Parties: NACE Consulting Pty Ltd (Appellant) Peter Sharp (Respondent) Representation: Solicitors: Appellant (Self Represented) Priest Legal (Respondent) File Number(s): AP 19/38032 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil & Administrative Tribunal New South Wales Jurisdiction: Consumer & Commercial Division Citation: N/A Date of Decision: 05 August 2019 Before: G Blake SC, Senior Member File Number(s): HB18/38677 REASONS FOR DECISION Background 1. This decision concerns costs of the appeal. The relevant background is that the Tribunal at first instance made orders that the Appellant was to pay the Respondent a sum of approximately $57,000 and costs. 2. The Appellant lodged an appeal on 23 August 2019. At a call over of the appeal, directions were made for the preparation of relevant evidence and submissions and a hearing date for the appeal was set for 11 November 2019. However, in late September/early October 2019 the Appellant sought to withdraw the appeal. On 8 October 2019 orders were made in chambers to the effect that the appeal was dismissed under s 55(1)(a) of the Civil & Administrative Tribunal Act 2013 ( the NCAT Act ) because it had been withdrawn. Directions were also made for the Appellant to file and serve submissions with respect to costs in response to a submission which had been received from the solicitors for the Respondent requesting that an order for costs of the appeal be made in favour of the Respondent. The hearing date was vacated. 3. In the Notice of Appeal, the Appellant had sought to have the orders at first instance set aside and in their place orders in favour of the Appellant requiring the Respondent to pay a sum in the order of $68,000. Submissions 1. In the course of the Respondent consenting to the appeal being dismissed, the Respondent made a submission that an order for costs of the appeal should be made in favour of the Respondent. The Respondent referred to rule 38 of the Civil & Administrative Tribunal Rules (the Rules) and, in the alternative, submitted that the appeal was clearly very weak and that costs would be appropriate under s 60(3) of the NCAT Act. The Respondent consented to a hearing on costs being dispensed with and being decided on the papers. 2. As stated above the Tribunal made directions for the Appellant to file submissions. None have been received. The directions invited the Appellant to say whether a hearing on costs should be dispensed with. Decision 1. The relevant facts are uncomplicated. The orders of the Tribunal at first instance required the Appellant to pay to the Respondent a sum in the order of $57,000 and costs. The Appellant put that order in issue in the appeal and sought alternative orders in its favour. The Appellant then withdrew the appeal and the appeal was dismissed. 2. Although the general position under the NCAT Act is that each party is to pay their own costs (see section 60 of the NCAT Act), that position is modified under rule 38. The effect of rule 38 is that despite s 60, the Tribunal may award costs in proceedings to which the rule applies, even in the absence of special circumstances warranting such an award if the amount claimed or in dispute is more than $30,000. Rule 38 applies to proceedings allocated to the Consumer & Commercial Division of the Tribunal and is applicable in this case in respect of the proceedings at first instance. 3. Rule 38A provides that in respect of appeals lodged after 1st January 2016 if the provisions that applied to the determination of costs in the proceedings at first instance differed from those set out in s60 because of , inter alia, the Division Schedule then Rule 38A(2) applies. Rule 38 (which is to be found in the Division Schedule for the Consumer and Commercial Division) applied to the proceedings at first instance because the amount claimed or in dispute was more than $30000. Therefore Rule 38A applies to costs of the appeal. Rule 38A(2) provides that despite s60 , the Appeal Panel must apply the first instance costs provisions when deciding whether to award costs of the appeal. Essentially that means that costs may be awarded in the absence of special circumstances if the amount claimed or in dispute was greater than $30000. Such a claim was made at first instance and therefore costs of the appeal may be awarded notwithstanding the absence of special circumstances. 4. In summary on the basis of rules 38 and 38A, the Tribunal has power to award costs of this appeal even in the absence of special circumstances . 5. The Respondent has been put to expense in response to the filing of the Notice of Appeal and it is just that the Appellant should compensate the Respondent for that expense. 6. Both parties were given an opportunity to make submissions as to whether the determination of costs of the appeal can be decided on the papers and a hearing dispensed with. The Respondent has consented to a hearing being dispensed with. 7. The Appeal Panel makes the following orders: 1. The Appellant is to pay the Respondent's costs of the appeal in an amount as agreed, or as assessed. 2. A hearing on the question of costs is dispensed with. ********** 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: 10 March 2020