News v Cotes (No 2) [2019] NSWCATAP 235

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: News v Cotes (No 2) [2019] NSWCATAP 235 Hearing dates: On the papers Date of orders: 20 September 2019 Decision date: 20 September 2019 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member K Rosser, Principal Member Decision: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013, a hearing of the application in respect of costs is dispensed with.

2. The appellant is to pay the respondents' costs of this appeal fixed in an amount of $3,000.00 inclusive of GST. Catchwords: COSTS – Lump sum costs order Legislation Cited: Civil and Administrative Tribunal Act, 2013 (NSW) Cases Cited: 203 Castlereagh Street Pty Ltd v Skybloo Holdings Pty Ltd [2017] NSWCATAP 29 Texts Cited: Nil Category: Costs Parties: Rosemary News (Appellant) Jane Maxine Cotes (First Respondent) Constantine Laptev (Second Respondent) Representation: Counsel: V Thomas (Respondent)

Solicitors: Appellant (Self-represented) Australia Business Lawyers and Advisors (Respondent) File Number(s): AP 19/22269 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 10 April 2019 Before: D Bluth, Senior Member File Number(s): COM 17/27172, COM 17/16467, COM 17/16463

reasons for decision

Introduction 1. On 22 July 2019 the Tribunal dismissed the appellant's appeal and made an order that the appellant pay the respondents' costs of the appeal, such costs to be as agreed or assessed on an ordinary basis. 2. Directions were made to permit the parties to apply to the Tribunal for a different order in respect of costs. 3. The respondents, in whose favour we made a costs order on the basis the cost were to be agreed or assessed on an ordinary basis, ask that this order be varied and that the Tribunal fix the amount of costs in the sum of $3,000.00. 4. The respondents provided written submissions in support of that application dated 26 July 2019. The respondents forwarded a copy of those submissions to the appellant. 5. Despite the directions of the Tribunal permitting the appellant to file any submissions in reply, no submissions have been provided in response to the respondents' application for a lump sum costs order. 6. In making directions in respect of any cost application, the Tribunal also directed the parties to provide submissions about whether an order should be made under s 50(2) of the Civil and Administrative Tribunal Act, 2013 (NCAT Act) dispensing with a hearing. In relation to this matter, neither party made submissions or suggested that a hearing was necessary. 7. Having regard to the history of these proceedings, we are satisfied that an order should be made dispensing with a hearing. This is because a further hearing will only have the consequence of unnecessarily increasing the costs of both parties. 8. The respondents' application for a lump sum costs order is supported by a tax invoice from Ms Thomas, Counsel for the respondent, recording charges in respect of the appeal and appearing on behalf of the respondents at the hearing on 5 July 2019. These charges total $7216.00 inclusive of GST. No claim is made for the costs of the solicitor for the respondent. Rather, $3000.00 is claimed in total, that claim being based on Counsel fees only. 9. The respondents' submissions can be summarised shortly. 10. The Tribunal has power to make a lump sum cost order. Reference is made to the decision of the Tribunal in 203 Castlereagh Street Pty Ltd v Skybloo Holdings Pty Ltd [2017] NSWCATAP 29 at [35]. Having regard to the claim for costs being modest and the fact that the appellant as indicated she may not be able to meet any liability for costs in any event, the respondents say a lump sum costs order is appropriate otherwise they will be put to significant expense in having costs assessed. 11. We accept this submission. 12. A review of the amount claimed by Counsel in the tax invoice referred to above identifies work that was reasonably necessary for the proper conduct of this appeal. The time claimed is not excessive, the appeal originally being fixed for a hearing of one half day. The hourly rate charged is $370 per hour (exclusive of GST) which, when applied to the hours worked by Counsel, gives rise to an amount charged in respect of the services provided of $7216.00 (inclusive of GST). Again, this amount is not excessive having regard to the issues raised in the appeal. 13. However, the full amount of Counsel's fees is not claimed. Rather the claim is limited to a total amount of $3000.00 inclusive of GST. This represents less than 50% of the cost incurred by the respondents in briefing Counsel. 14. In our view the amount of $3000.00 inclusive of costs is reasonable for the services provided. 15. It follows that we are satisfied that it is appropriate to make a lump sum costs order in the present case. Accordingly, in substitution for order 2 made 22 July 2019, we make the following order; 2. The appellant is to pay the respondents' costs of this appeal fixed in an amount of $3,000.00 inclusive of GST.

********** 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: 20 September 2019