Coogee Bay Village v Profilio (RLD)

[2011] NSWADTAP 67

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Coogee Bay Village v Profilio (RLD) [2011] NSWADTAP 67

Hearing dates:

On the papers

Decision date:

30 December 2011

Jurisdiction:

Appeal Panel - Internal

Before:

Deputy President David Patten
P Moloney Judicial Member
M Lonie Judicial Member

Decision:

1. Set aside orders made by the Tribunal on 14 January 2011 and 31 March 2011.

2.In lieu thereof, order that the Respondents pay one third of the Appellant's costs at first instance.

3.Order that the Respondents pay the Appellant's costs of the appeal.

4.All costs to be on a party and party basis as agreed or in default of agreement as assessed.

5.In relation to the appeal the Respondents are to have a certificate under the Suitors Fund Act.

Catchwords:

Costs - appeal and first instance - offer of compromise

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Suitors Fund Act 1951

Category:

Costs

Parties:

Coogee Bay Village Pty Ltd (Appellant)
Joe Profilio (First Respondent)
Rozi Sajko (Second Respondent)

File Number(s):

119015

REASONS FOR DECISION

1. The Appeal Panel on 7 September 2011 upheld the appeal and in lieu of orders previously made by the Tribunal ordered that the Application be dismissed. The Appellant was given leave to apply for an order for costs within 21 days.

1. On 28 September there was filed in the Registry a document headed "Appellant's Submissions on Costs, Interests (sic), Back Rent and Cleaning and Repair of Premises".

1. In relation to the claim made in the submissions for back rent, cleaning and repairs, we should say at once that there was no evidence to support such claim which is not, in any event, a matter we can deal with as incidental to the appeal. If the Appellant wishes to pursue this claim it will need to be the subject of a first instance application to the Tribunal.

1. In relation to costs of the appeal, the Appeal Panel has jurisdiction under s. 88 of the Administrative Decisions Tribunal Act (ADT Act) and in relation to costs below, the Appeal Panel has jurisdiction under s.114 of the ADT Act to set aside costs orders made below and make an order in substitution.

1. The application for costs received in the Registry was signed by Mr Christopher Alexandrou "agent for the Appellant". The Respondents in their submission on the costs issue received by the Registry on 19 October contend that Mr Alexandrou, who they state to be a director of the Appellant, was not entitled to sign a submission as to costs on its behalf. It was asserted that Mr Alexandrou required prior permission from the Tribunal to act as agent and this had not occurred. The argument seemed to follow that accordingly the appellant had failed to make submissions as to costs within 21 days; that the order in default of submissions that there be no order as to costs applies; and that the Appeal Panel is functus officio as to any further consideration of the matter.

1. On the basis that Mr Alexandrou is a director of the Appellant, in our opinion, he is not an "agent" requiring leave under s.71 of the ADT Act. If leave were required we would give it nunc pro tunc.

1. It follows that in our opinion the submissions were made in time and should be considered on their merits. As the submissions point out, the case has had a lengthy history. The issue of liability to which the appeal related was decided separately against the Appellant on 10 August 2009 after a hearing extending over 6 days.

1. On 14 January 2011, after a further 3 days of hearing, the Tribunal assessed damages in the amount of $86,705 and ordered the Appellant to pay that sum to the Respondents.

1. On 31 March 2011, the Appellant was ordered to pay to the Respondents 75% of their costs in the proceedings as agreed or as assessed on a party and party basis.

1. The order for payment of damages and the order for payment of costs must necessarily fall as a consequence of this Panel upholding the appeal and dismissing the application to the Tribunal. The question remains whether we should order the Respondents to pay the costs of the appeal and whether we should substitute a costs order for that made below.

1. Section 88 of the ADT Act provides as follows:

"88 Costs

(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.

(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv) causing an adjournment, or

(v) attempting to deceive another party or the Tribunal , or

(vi) vexatiously conducting 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) any other matter that the Tribunal considers relevant.

(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.

(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs .

(4) In this section, "costs" includes:

(a) costs of or incidental to proceedings in the Tribunal , and

(b) the costs of or incidental to the proceedings giving rise to the application , as well as the costs of or incidental to the application .

1. In its decision on costs in this case (Profilio v Coogee Bay Village Pty Ltd (No. 4) [2011] NSWADT,) the Tribunal extensively reviewed the principles relevant to the awarding of costs under the ADT Act. We respectfully adopt what was said by the learned Deputy President. The criterion is one of fairness. In considering fairness the Tribunal is entitled to take into account, relevantly to this case, that it was a commercial dispute between businessmen; that the test of "fairness" since the Act was amended from 1 January 2009 is a lower barrier than the test of "special circumstances" previously applicable; that the notion of fairness will take account of the compensatory nature of awards of costs, which will normally favour a successful party, and that offers of compromise can properly be taken into account.

1. Although the Respondents succeeded at first instance, they did so on only one of the six grounds upon which their claim was based. The appeal succeeded in respect of the only ground which, at first instance, was found in the Respondents' favour, which incidentally concerned the proper interpretation of a document in the drafting of which the Respondents participated. We infer from those circumstances that the Respondents pursued litigation which was always hazardous. In our opinion that is a relevant consideration when considering their attitude towards offers of compromise.

1. There was evidence that, following previous negotiations, in September 2009, the Appellant offered to pay the Respondents $150,000 inclusive of costs. This offer was not accepted by the Respondents. Although it was expressed to be inclusive of costs, the Respondents were no doubt able to assess it fully by asking their solicitors to quantify legal costs to date. As the offer was made comparatively late in the litigation, it is reasonable to assume that costs would have consumed a large part of the offer of $150,000 if it had been accepted. However, it was not and the Respondents have done far worse than if they had accepted it.

1. In all the circumstances, we think it fair that the Respondents should be ordered to pay the costs of the appeal. As to the hearing at first instance we think it would be fair, having particular regard to the timing of the offer referred to above, that the Respondents be ordered to pay one third of the costs of the proceedings below.

1. There is no evidence which would justify us making an order for interest upon costs nor, in the circumstances, do we think it appropriate to order costs on an indemnity basis.

1. As the appeal succeeded on a question of law, the Respondents are entitled to the benefit of the Suitors Fund Act.

1. We make these further orders;

1. Set aside orders made by the Tribunal on 14 January 2011 and 31 March 2011.

2. In lieu thereof, order that the Respondents pay one third of the Appellant's costs at first instance.

3. Order that the Respondents pay the Appellant's costs of the appeal.

4. All costs to be on a party and party basis as agreed or in default of agreement as assessed.

5. In relation to the appeal the Respondents are to have a certificate under the Suitors Fund Act.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

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Decision last updated: 30 December 2011