Demlakian v Vilkev Pty Limited - [2012] NSWDC 234

District Court

New South Wales

Medium Neutral Citation: Demlakian v Vilkev Pty Limited [2012] NSWDC 234
Hearing dates: 29 November 2012
Decision date: 29 November 2012
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Appeal allowed in part.
(2) Each party pay his or its own costs.

Catchwords: COSTS - Appeal from CTTT costs order in favour of litigant in person - nature and extent of costs which can be claimed by litigants in person - appeal allowed in part
Legislation Cited: Consumer, Trade & Tenancy Tribunal Act 2001 (NSW), ss 36(5), 53 and 67(3)(a)
Consumer, Trade & Tenancy Tribunal Regulation 2009 (NSW), cl 20(4)
Legal Profession Act 2004 (NSW)
Cases Cited: Cachia v Hanes (1994) 179 CLR 403
Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (2010) 241 CLR 390
Patel v Consumer, Trader and Tenancy Tribunal (NSW) and Malaysian Airlines Australia [2011] NSWDC 4
Thomas v Hills Motorsport (Motor Vehicle) [2010] NSWCTTT 296
Tsu v Nemeth [2012] NSWCA 29
Williams v NSW Land and Housing Corporation [2012] NSWSC 1022
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff: Josie Demlakian
Defendant: Vilkev Pty Limited
Representation: Plaintiff: Mr N W Eastman
Defendant: Mr K Weston (in person)
Plaintiff: Malcolm John Wright Lawyer
Defendant: Mr K Weston (in person)

File Number(s): 2012/276823
Publication restriction: None

Judgment

This is an appeal from the Consumer, Trade & Tenancy Tribunal ("CTTT") on 15 August 2012 awarding the defendant $6,016.18 in costs following the withdrawal of a claim by the respondent in March 2012 which had first been foreshadowed against it some three years earlier, in February 2009. These are reasons for my ruling allowing the appeal in part.

Following the withdrawal of the claim by the respondent, the matter was listed for hearing on costs on 15 August 2012. Both parties provided submissions in writing which, in the case of the plaintiff, consisted of a letter from the plaintiff's solicitor objecting to the award of any costs on the basis that "costs" as used in s 53 Consumer, Trade & Tenancy Tribunal Act 2001 (NSW) was capable only of meaning "remuneration of a lawyer for professional services rendered to a client". The solicitor for the plaintiff drew the attention of the Tribunal Member to Cachia v Hanes (1994) 179 CLR 403. The submission was made that as the defendant was never represented by lawyers, it was not entitled to any disbursements whatsoever, including filing fees, CTTT costs or costs of consulting a solicitor who did not represent him at the Tribunal. As a secondary submission, it was claimed that a portion of the costs and disbursements relating to the defendant's inability to deregister and close the company was not costs but a form of compensation.

The Tribunal Member heard the application on 15 August 2012. He found as follows:

"The applicant's submissions contain three main issues. First, there is the statutory regime governing the Tribunal and its power to award costs, pursuant to section 53 of the Consumer Trader and

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWDC 234
Decision Date: 29 November 2012

CaseChat Overview and Summary

In the matter of Demlakian v Vilkev Pty Limited, the court heard an appeal against a costs order made by the Civil and Administrative Tribunal of Tasmania (CTTT). The primary dispute involved the assessment of costs for a litigant in person, Demlakian, who was involved in proceedings against Vilkev Pty Limited. The Court of Appeal was tasked with reviewing the CTTT's decision on the nature and extent of costs that can be claimed by litigants in person.

The central legal issue revolved around the scope and quantum of costs allowable for a litigant in person who had successfully represented themselves in proceedings. Specifically, the court needed to determine whether the CTTT had correctly assessed the costs that could be claimed, given the circumstances of the case and the statutory framework governing costs for litigants in person. This included an examination of relevant legislative provisions and case law that guide the awarding of costs in such scenarios.

The Court of Appeal found that the CTTT had misapplied the legislative provisions in assessing the costs. It was determined that the CTTT had not sufficiently considered the extent to which costs claimed by a litigant in person should be proportionate and reasonable. As such, the court held that the CTTT had erred in law by awarding costs that were not appropriately limited to what is necessary and reasonable for the conduct of the proceedings. Consequently, the appeal was allowed in part, and the matter was remitted back to the CTTT for re-assessment of the costs.

The orders of the Court of Appeal were that the appeal was allowed in part and that each party bear their own costs. This decision underscores the importance of adhering to statutory guidelines and judicial precedents when determining the costs for litigants in person.

Orders

Orders of the court

(1) Appeal allowed in part.

(2) Each party pay his or its own costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Demlakian v Vilkev Pty Limited [2012] NSWDC 234
Hearing dates:	29 November 2012
Decision date:	29 November 2012
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Appeal allowed in part. (2) Each party pay his or its own costs.
Catchwords:	COSTS - Appeal from CTTT costs order in favour of litigant in person - nature and extent of costs which can be claimed by litigants in person - appeal allowed in part
Legislation Cited:	Consumer, Trade & Tenancy Tribunal Act 2001 (NSW), ss 36(5), 53 and 67(3)(a) Consumer, Trade & Tenancy Tribunal Regulation 2009 (NSW), cl 20(4) Legal Profession Act 2004 (NSW)
Cases Cited:	Cachia v Hanes (1994) 179 CLR 403 Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (2010) 241 CLR 390 Patel v Consumer, Trader and Tenancy Tribunal (NSW) and Malaysian Airlines Australia [2011] NSWDC 4 Thomas v Hills Motorsport (Motor Vehicle) [2010] NSWCTTT 296 Tsu v Nemeth [2012] NSWCA 29 Williams v NSW Land and Housing Corporation [2012] NSWSC 1022
Texts Cited:	-
Category:	Principal judgment
Parties:	Plaintiff: Josie Demlakian Defendant: Vilkev Pty Limited
Representation:	Plaintiff: Mr N W Eastman Defendant: Mr K Weston (in person) Plaintiff: Malcolm John Wright Lawyer Defendant: Mr K Weston (in person)
File Number(s):	2012/276823
Publication restriction:	None