Cass Training Pty Ltd v Bimoli and Bhetwal Family Pty Ltd; Bimoli and Bhetwal Family Pty Ltd v Cass Training Pty Ltd (No. 2)

[2023] NSWCATCD 20

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Cass Training Pty Ltd v Bimoli and Bhetwal Family Pty Ltd; Bimoli and Bhetwal Family Pty Ltd v Cass Training Pty Ltd (No. 2) [2023] NSWCATCD 20

Hearing dates:

On the papers

Date of orders:

24 February 2023

Decision date:

24 February 2023

Jurisdiction:

Consumer and Commercial Division

Before:

G Ulman, Senior Member

Decision:

In application COM 21/47413:

A hearing on costs is dispensed with pursuant to section 50(1)(c) of the Civil and Administrative Tribunal Act, 2013.

Each party bear the party’s own costs of the application.

In application COM 22/03588:

A hearing on costs is dispensed with pursuant to section 50(1)(c) of the Civil and Administrative Tribunal Act, 2013.

Each party bear the party’s own costs of the application.

Catchwords:

Costs - exercise of discretion where both parties were unsuccessful – the intent of the costs order

Legislation Cited:

Civil and Administrative Tribunal Act, 2013

Civil and Administrative Tribunal Rules 2014

Cases Cited:

Thompson v Chapman [2016] NSWCATAP 6

Vertzayias v King & Ors [2011] NSWCA 215

Category:

Costs

Parties:

Cass Training Pty Ltd (applicant/cross respondent)

Bimoli and Bhetwal Family Pty Ltd (respondent/cross applicant)

Representation:

Mr Z Zhouand, solicitor (applicant/cross respondent)
No submissions by the respondent/cross applicant
Solicitors:
RTO Legal, Solicitors (Applicant/cross respondent)

File Number(s):

COM21/47413 and COM21/03588

Publication restriction:

Nil

REASONS FOR DECISION

1. On 3 January 2023 I gave my decision (principal decision) in relation to separate applications; one filed by Cass Training Pty Ltd (Cass) and the other by Bimoli and Bhetwal Family Pty Ltd (Bimoli). Both applications were dismissed.

2. The principal decision sets out the background facts and the reasons for my decision and need not be repeated here.

3. On the question of costs, I said this in the principal decision:

[111] Since both parties’ applications have been unsuccessful, my preliminary view only is that while Rule 38(2) of the Civil and Administrative Tribunal Rules, 2014 most probably applies here, no order for costs should be made in either application. I will, however, in the orders to be made give the parties an opportunity to make submissions on costs, should they wish to do so.

4. An order was made in the principal decision for the filing of written submissions. Mr Zhouand, the solicitor for Cass, filed a written submission. No submissions were filed on behalf of Bimoli.

5. Mr Zhouand’s submission are brief and reads as follows:

On 3 January 2023, the Tribunal directed the parties, should they wish, to make submissions on costs within 14 days. These are the submissions of the Applicant pursuant to that direction.

At paragraph 111 of the reasons for judgment, the Senior Member expressed a preliminary view that no order for costs should be made in either application. The Applicant would consent to an order in terms that ‘No order as to costs with the intent that each party will bear their own costs of each application ’, or simply '"Each party is to bear its own costs of each application'.

While the Applicant expects that this was the intent at [111], the Applicant asks that this be made explicit. Clause 22.1 of the Lease (HT-1 at 318) says that the Applicant must pay all costs arising out of any Default (as defined) under the Lease. The Applicant says that the proceeding does not arise from any Default but given the history of the matter does not wish to engage in further disputation about such further issues. Unless the ‘order’ is made explicit such disputation may occur: see Vertzayias v King & Ors [2011] NSWCA 215 Giles JA (with whom McFarlan and Whealy JJA agreed) at [110 -113].

6. Mr Zhouand’s concern is that if a costs order is made in the terms I indicated in the principal decision, there is a risk (which his client wishes to avoid) that Bimoli may have a contractual right to costs which would be unaffected by such an order.

7. In Vertzayias v King & Ors, Giles JA referred to a number of cases where it was held that an order in terms that there be no order as to costs can lead to the outcome Mr Zhouand seeks to avoid. His Honour at [111] and [112] said this:

[111] Order 6 was an order that the Court made no order as to costs. It was not an order obliging Permanent to pay its own costs, or an order that it could not pass its costs on to Paul and Charles as part of enforcement expenses. It meant that the Court did not dictate that one party should pay costs to the other, but that left in force any contractual dictate, and Permanent was free to pass the costs on if the terms of the Permanent loan and mortgage entitled it to debit the costs to the loan account.

[112] Oshlack v Richmond River Council (1998) 193 CLR 72, on which Charles relied, is not to the contrary. Gaudron and Gummow JJ referred at [91] to "no order as to costs" leaving the costs to lie where they fell, but that did not exclude that where the costs fell was governed by an existing contractual regime. The same may be said of the explanation of "no order as to costs" by Santow J in Wentworth v Wentworth [1999] NSWSC 638 at [29] –

"That clearly means that a judicial decision has been made that there should be no costs ordered to either side and that necessarily means that costs are to lie where they fall; see Re Hodgkinson [1895] 2 Ch 190 followed by Taylor J in Trikas v Rheem (Australia) Pty Limited [1964] 81 WN 504 at 506 and more recently Oshlack v Richmond River Council [1998] 193 CLR 72 at 91 per Gaudron and Gummow JJ describing the effect of such an order in those terms."

8. I do not consider the preliminary view expressed in the principal decision in relation to costs to be relevant as to how costs might ultimately be determined now that costs submissions have been made.

9. Both applications involved claims exceeding $30,000. Rule 38(2)(b) is engaged. This permits the Tribunal to award costs without the need to consider whether there are any special circumstances warranting the awarding of costs, as provided for under section 60 of the Civil and Administrative Tribunal Act, 2013.

10. Rule 38 gives the Tribunal a general discretion when it comes to the award of costs (See: Thompson v Chapman [2016] NSWCATAP 6 at [68].

11. On the question of costs here, this was not a case of one set of proceedings where there was a winner and a loser such that costs would follow the event. Cass and Bimoli were each unsuccessful in their respective applications. In those circumstances it is appropriate, in the exercise of my discretion, for an order to be expressed so that neither party is required to pay the costs of the other party that were incurred in the proceedings. In other words, cost will not “lie where they fall”.

12. I am also persuaded to that conclusion by the absence of any cost submissions on behalf of Bimoli taking issue with Mr Zhouand’s submissions. If there had been some possibility of a contractual right to have its costs of the proceedings paid by Cass, then I would have expected submissions to that effect to have been made on behalf of Bimoli given what Mr Zhouand was seeking on behalf of his client.

13. Accordingly, the order of the Tribunal in each application on the question of costs, will be as follows:

1. A hearing on costs is dispensed with pursuant to section 50(1)(c) of the Civil and Administrative Tribunal Act, 2013

2. Each party bear the party’s own costs of the application.

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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

Decision last updated: 28 June 2023