Mendonca v Tonna - [2017] NSWCATCD 36

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Mendonca v Tonna [2017] NSWCATCD 36
Hearing dates: 16 February 2017
Decision date: 05 May 2017
Jurisdiction: Consumer and Commercial Division
Before: C R Xuereb, General Member
Decision:
1. In relation to matters RT 16/19949 and RT 16/28340:
a. Mr Tonna’s costs of his representation both by solicitor and by counsel on 19 August 2016 are to be paid by Dr Mendonca on the ordinary basis, as agreed or assessed, within 14 days of such agreement or assessment.
b. Mr Tonna’s costs incurred in matters RT 16/19949 and RT 16/28340 between 2 November 2016 and 16 February 2017 are to be paid by Dr Mendonca on an indemnity basis, as agreed or assessed, within 14 days of such agreement or assessment.
2. In relation to matter RT 16/49008:
a. Dr Mendonca is to pay the costs of Mr Tonna incurred in matter RT 16/49008 between 8 November 2016 and up to and including 16 February 2017 on an indemnity basis, as agreed assessed, within 14 days of such agreement or assessment.
3. In relation to the costs applications made in respect of matters RT 16/19949, RT 16/28340 and RT 16/49008:
a. Dr Mendonca is to pay the costs of Mr Tonna incurred in those applications on an indemnity basis, as agreed or assessed, within 14 days of such agreement or assessment.

Catchwords: Costs, withdrawal of proceedings by applicant, whether Tribunal has jurisdiction to make costs orders following dismissal of proceedings after withdrawal, special circumstances to award costs
Legislation Cited: Civil and Administrative Tribunal Act 2013
Civil and Administrative Tribunal Regulation 2013
Civil and Administrative Tribunal Rules 2014
Residential Tenancies Act 2010
Residential Tenancies Regulations 2010
Cases Cited: Burns v Corbett; Gaynor v Burns [2017] NSWCA 3
Edwards v CohenHandler Pty Ltd [2017] NSWCATAP 53
Gaynor v Burns [2015] NSWCATAP 150
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11
Staniland v Integrity Homes Pty Ltd [2016] NSWCATCD
Category: Costs
Parties: Applicant: Renuka Maria Mendonca
Respondent: Mark Tonna
Representation: Applicant: Mr M Fernandes instructed by TressCox
Respondent: Ms J Gatland instructed by Adams & Partners

File Number(s): RT 16/19949, RT 16/28340, RT 16/49008
Publication restriction: Nil

REASONS FOR DECISION

BACKGROUND

Before the Tribunal are two applications for costs made by the respondent, Mr Mark Tonna, in the substantive proceedings – matters RT 16/19949, RT 16/28340 and RT 16/49008.
The applicant in the substantive proceedings is Dr Renuka Mendonca.
To avoid confusion, the Tribunal will refer to the parties by name in these reasons.
Dr Mendonca commenced two sets of proceedings in the Tribunal on 24 April 2016 and on 18 June 2016 respectively. Dr Mendonca also brought a third set of proceedings on 8 November 2016 after she withdrew the first and second set of proceedings on 2 November 2016.
The April 2016 application sought a termination of a residential tenancy agreement on several bases. The application was listed for conciliation hearing on 29 July 2016, but at the…

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: [2017] NSWCATCD 36
Decision Date: 05 May 2017

CaseChat Overview and Summary

The case of Mendonca v Tonna involved proceedings in the Federal Circuit and Family Court of Australia. The dispute centred around the costs incurred by Mr Tonna as a result of Dr Mendonca withdrawing her legal proceedings. The primary legal issue before the court was whether the Tribunal had the jurisdiction to make costs orders following the dismissal of proceedings after withdrawal, and if so, whether special circumstances existed to warrant an award of costs.

The court examined the applicable legislative and case law to determine the extent of the Tribunal’s jurisdiction in awarding costs after a withdrawal of proceedings. It considered the principles of costs in litigation, the general rule that costs follow the event, and the discretion of the court to make orders for costs under the relevant legislation. The court also assessed whether there were special circumstances that would justify an award of indemnity costs.

The court concluded that it had jurisdiction to make costs orders even after the withdrawal of proceedings. It found that special circumstances existed due to the nature of the proceedings, the conduct of the parties, and the significant costs incurred by Mr Tonna. As a result, the court ordered that Dr Mendonca pay Mr Tonna’s costs on both ordinary and indemnity bases in respect of various proceedings and applications. These orders were made to ensure that Mr Tonna was compensated for the costs he reasonably and necessarily incurred in defending against Dr Mendonca's withdrawn claims.

Orders

Orders of the court

1. In relation to matters RT 16/19949 and RT 16/28340:

a. Mr Tonna’s costs of his representation both by solicitor and by counsel on 19 August 2016 are to be paid by Dr Mendonca on the ordinary basis, as agreed or assessed, within 14 days of such agreement or assessment.

b. Mr Tonna’s costs incurred in matters RT 16/19949 and RT 16/28340 between 2 November 2016 and 16 February 2017 are to be paid by Dr Mendonca on an indemnity basis, as agreed or assessed, within 14 days of such agreement or assessment.

2. In relation to matter RT 16/49008:

a. Dr Mendonca is to pay the costs of Mr Tonna incurred in matter RT 16/49008 between 8 November 2016 and up to and including 16 February 2017 on an indemnity basis, as agreed assessed, within 14 days of such agreement or assessment.

3. In relation to the costs applications made in respect of matters RT 16/19949, RT 16/28340 and RT 16/49008:

a. Dr Mendonca is to pay the costs of Mr Tonna incurred in those applications on an indemnity basis, as agreed or assessed, within 14 days of such agreement or assessment.

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:	Mendonca v Tonna [2017] NSWCATCD 36
Hearing dates:	16 February 2017
Decision date:	05 May 2017
Jurisdiction:	Consumer and Commercial Division
Before:	C R Xuereb, General Member
Decision:	1. In relation to matters RT 16/19949 and RT 16/28340: a. Mr Tonna’s costs of his representation both by solicitor and by counsel on 19 August 2016 are to be paid by Dr Mendonca on the ordinary basis, as agreed or assessed, within 14 days of such agreement or assessment. b. Mr Tonna’s costs incurred in matters RT 16/19949 and RT 16/28340 between 2 November 2016 and 16 February 2017 are to be paid by Dr Mendonca on an indemnity basis, as agreed or assessed, within 14 days of such agreement or assessment. 2. In relation to matter RT 16/49008: a. Dr Mendonca is to pay the costs of Mr Tonna incurred in matter RT 16/49008 between 8 November 2016 and up to and including 16 February 2017 on an indemnity basis, as agreed assessed, within 14 days of such agreement or assessment. 3. In relation to the costs applications made in respect of matters RT 16/19949, RT 16/28340 and RT 16/49008: a. Dr Mendonca is to pay the costs of Mr Tonna incurred in those applications on an indemnity basis, as agreed or assessed, within 14 days of such agreement or assessment.
Catchwords:	Costs, withdrawal of proceedings by applicant, whether Tribunal has jurisdiction to make costs orders following dismissal of proceedings after withdrawal, special circumstances to award costs
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Regulation 2013 Civil and Administrative Tribunal Rules 2014 Residential Tenancies Act 2010 Residential Tenancies Regulations 2010
Cases Cited:	Burns v Corbett; Gaynor v Burns [2017] NSWCA 3 Edwards v CohenHandler Pty Ltd [2017] NSWCATAP 53 Gaynor v Burns [2015] NSWCATAP 150 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 Staniland v Integrity Homes Pty Ltd [2016] NSWCATCD
Category:	Costs
Parties:	Applicant: Renuka Maria Mendonca Respondent: Mark Tonna
Representation:	Applicant: Mr M Fernandes instructed by TressCox Respondent: Ms J Gatland instructed by Adams & Partners
File Number(s):	RT 16/19949, RT 16/28340, RT 16/49008
Publication restriction:	Nil