Blue Haven Pools South Pty Ltd v Maloney (No 2) [2019] NSWCATAP 284

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Blue Haven Pools South Pty Ltd v Maloney (No 2) [2019] NSWCATAP 284 Hearing dates: On the papers Date of orders: 29 November 2019 Decision date: 29 November 2019 Jurisdiction: Appeal Panel Before: Dr R Dubler SC, Senior Member J Kearney, Senior Member Decision: (1) A hearing on costs is dispensed with under s 50(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW). (2) Blue Haven Pools South Pty Ltd is to pay Christine Maloney's costs of the appeal, on an ordinary basis. Catchwords: COSTS Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 Thompson v Chapman [2016] NSWCATAP 6 Texts Cited: None cited Category: Principal judgment Parties: Blue Haven Pools South Pty Ltd (Appellant) Christine Maloney (Respondent) Representation: Counsel: B Lloyd (Respondent)

Solicitors: Somerville Legal (Appellant) Chamberlains Law Firm (Respondent) File Number(s): AP 19/14652 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 25 February 2019 – amended 20 March 2019 Before: K Ross, Senior Member File Number(s): HB 18/09862

reasons for decision

Introduction 1. In a reserved decision published on 17 October 2019, the Appeal Panel dismissed the appeal by the appellant (Blue Haven) against orders made in favour of the respondent (Ms Maloney) of the claims made in her application (HB 18/09862). In allowing the appeal we made the following orders: ''(3) If the Respondent wishes to seek an order for costs of this appeal in her favour, she is to file and serve within 14 days of this decision a short outline of submissions as to why the Appeal Panel should make such an order and as to whether the question of costs should be determined on the papers; (4) If the Appellant opposes any costs order being made, the appellant is to file and serve a short outline of submissions as to why such an order should not be made and dealing with whether the issue of costs should be determined by the Appeal Panel on the papers, 14 days after receipt of the Respondent's submissions on costs; and (5) The Respondent is to file and serve any reply submissions on costs within 14 days after service of the Appellant's submissions.'' 1. On 31 October 2019, filed Ms Maloney and served an application for her costs in regard to the appeal. Blue Haven has not filed or served any submissions in reply. 2. In our opinion, the issues for determination for costs can be adequately decided in the absence of the parties by considering the written material that has been filed and served, including the material filed and served in the substantive appeal to which this application for costs relates. In the absence of any objections by the parties to having the matter determined on the papers we have decided to make an order, under s 50 (1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), dispensing with a hearing of the appellants' application for costs. 3. For the reasons set out below, we have also decided that it is appropriate to make an order that Blue Haven pay Ms Maloney's costs of the appeal.

What provisions apply to the costs application? 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. However, r 38 of the Civil and Administrative Tribunal Rules 2014 (the Rules) modifies the application of s 60 such that in proceedings before the Consumer and Commercial Division the Tribunal may award costs in the absence of special circumstances warranting such an award if the amount claimed or in dispute in the proceedings is more than $30,000. Rule 38A modifies the position in respect of appeals by directing that the Appeal Panel must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal. 3. In Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 the Appeal Panel found at [57]: 57 Adapting these principles to the circumstances of the present appeals and having regard to the specific wording of r 38, it appears to us that in applying r 38(2)(b): (1) The determinative factor is the amount in dispute in each appeal, not the amount in dispute in the proceedings at first instance; (2) The phrase "in dispute" is to be construed as meaning truly in dispute or at issue or, inversely, not unrealistically in dispute; (3) Whether "the amount … in dispute" in each appeal is more than $30,000 depends on whether there is a realistic prospect that in each appeal the wealth of the appealing party would be changed by more than $30,000 or, put another way, whether the right claimed by the appealing party, but denied by the decision at first instance, prejudices that party to an amount in excess of $30,000 … 1. The amount in dispute on appeal was more than $30,000 as Blue Haven sought on appeal to "prejudice" Ms Maloney by the relief sought by an amount in excess of $30,000. Accordingly, by operation of r 38 (2)(b) costs may be awarded in the absence of special circumstances being shown.

Should GPM be ordered to pay Ms Baker's costs of the appeal? 1. Rule 38(2)(b) gives us a wide discretion to make an order for costs. It does not specify the factors we must take into account in exercising the discretion, although the discretion must be exercised judicially. In Thompson v Chapman [2016] NSWCATAP 6, the Appeal Panel discussed the exercise of the discretion, stating at [69] to [72]: 69. The starting point in exercising such discretion is that the "usual order for costs" is that a successful party should be entitled to an order for costs in their favour: see Latoudis v Casey[1990] 170 CLR 534 per Mason CJ at 554 and Oshlack v Richmond River Council per McHugh J at 97. 70. The reason for such an order is that it is appropriate for the party who incurred costs caused by the other party in litigation to be reimbursed. Further, an award of costs is by way of an indemnity to the successful party and not as punishment of the unsuccessful party: see Latoudis v Casey per Mason CJ at 543 and McHugh J at 567 and in Oshlack v Richmond River Council per Brennan CJ at 75. 71. Where there is a general discretion for costs there is no absolute rule that, absent disentitling conduct, a successful party is to be compensated by the unsuccessful party nor is there any rule that a successful party might not be ordered to bear the costs of an unsuccessful party: see Oshlack v Richmond River Council per Gaudron and Gummo JJ at 88 and Kirby J at 121 – 123. 72. The factors to be considered in awarding costs in a particular case are not to be confined as to do so would constrain the general discretion. However it is clear from the authorities that factors that might influence whether the usual order for costs should apply and, if so, to what extent include: (1) Whether, by reason of the relative success of the parties on different issues and the time taken to determine those that an order for costs based on issues should be made: see for example Bostick Australia Pty Ltd v Liddiard (No 2) [2009] NSWSCA 304; and (2) Whether, by reason of the nature of the proceedings the usual rule should otherwise be displaced in whole or in part: see Oshlack v Richmond River Council per Gaudron and Gummo JJ at 41 – 44. 1. Ms Maloney was successful on the appeal. The appeal was dismissed. We see no reason why the usual rule in relation to costs should be displaced either in whole or in part. Accordingly, we find that the discretion to make an order for costs should be exercised in favour of Ms Maloney. 2. These finding are sufficient to dispose of the appeal.

Conclusion 1. In light of the above, the appropriate orders are 1. A hearing on costs is dispensed with under s 50(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. Blue Haven Pools South Pty Ltd is to pay Christine Maloney's costs of the appeal, on an ordinary basis.

********** 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: 29 November 2019