NSW Land & Housing Corp v Bullman
[2006] NSWSC 733
•21 July 2006
CITATION: NSW Land & Housing Corp v Bullman [2006] NSWSC 733 HEARING DATE(S): 11 May 2006
JUDGMENT DATE :
21 July 2006JURISDICTION: Common Law Division - Administrative Law List JUDGMENT OF: Associate Justice Harrison DECISION: (1) The appeal is allowed; (2) Each party is to pay its/their own costs CATCHWORDS: Appeal decision of CTTT - prerogative relief - termination of lease LEGISLATION CITED: Consumer, Trader and Tenancy Act 2001 (NSW) - ss 28, 35, 65 & 67
Residential Tenancies Act 1987 (NSW) - s 68CASES CITED: Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456
Crook v CTTT [2003] NSWCA 370
Greenslade, Jason Luke, Greenslade, Jason, and Greenslade, Hazel v Cawood, Craig Aaron [1996] NSWRT 134
Italiano v Carbone & Ors [2005] NSWCA 177
Kalokerinos & Anor v HIA Insurance Services P/L & Anor [2004] NSWCA 312
Kioa v West (1985) 159 CLR 550
Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340
NSW Land and Housing Corporation v Adams [2004] NSWCTTT 80
R v Doogan; Ex parte Lucas-Smith & Orthers [2005] ACTSC 74
Re Refugee Review Tribunal; Ex parte Aala (200) 204 CLR 82
SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162; [2005] HCA 24
Stead v State Government Insurance Commission (1986) 161 CLR 141
Vanmeld Pty Limited v Fairfield City Council & Anor [1999] NSWCA 6PARTIES: NSW Land and Housing Corporation - Plaintiff
Lynette Bullman - First Defendant
Consumer, Trader & Tenancy Tribunal - Second DefendantFILE NUMBER(S): SC 30109/2005 COUNSEL: Mr J M Atkin - Plaintiff
Ms K Sant - First DefendantSOLICITORS: Mr M Callen
Department of Housing - PlaintiffMr N Arrage
I V Knight
Tenants' Union - First Defendant
Crown Solicitor - Second Defendant
LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW LOWER COURT FILE NUMBER(S): RT 04/53497 LOWER COURT JUDICIAL OFFICER : Tribunal Member K Thane LOWER COURT DATE OF DECISION: 17 October 2005
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LISTASSOCIATE JUSTICE HARRISON
30109/2005 - NSW LAND & HOUSING CORPORATION vFRIDAY, 21 JULY 2006
JUDGMENT (Appeal decision of CTTT
LYNETTE BULLMAN & ANOR
– prerogative relief; termination of lease)
1 HER HONOUR: By summons filed 5 December 2005 the plaintiff seeks firstly, an order pursuant to s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (the Act) to set aside the orders of Tribunal Member K Thane made on 17 October 2005, and in relation to which reasons were given dated 7 November 2005 in which the application filed by the plaintiff in proceedings RT 04/53497 were dismissed; and secondly, an order pursuant to s 67(3)(b) of the Act. At the hearing, an amendment to the summons was granted. Additionally, the plaintiff seeks an order pursuant to s 65(3) quashing the orders made by the Tribunal and an order that the matter be remitted to the Tribunal to be dealt with according to law.
2 The plaintiff is the NSW Land and Housing Corporation (NSW Housing). The first defendant is Lynette Bullman. The second defendant is the Consumer, Trader and Tenancy Tribunal (the CTTT) who has filed a submitting appearance. The plaintiff relied on two affidavits of Darryl Ford dated 28 February 2006 and 21 March 2006. The defendant relied upon the affidavit of Brij Bhushandatt sworn 14 March 2006.
The appeal and relief sought
3 Section 65(3) of the Act provides that relief can be granted by way of a judgment or order in the nature of prohibition, mandamus, certiorari, declaratory judgment or an injunction if in relation to the hearing or determination of the matter, a party had been denied procedural fairness or the Tribunal had no jurisdiction to make the order. The court is empowered to grant relief in the nature of certiorari, pursuant to s 65(1)(a) of the Act. Relief of that kind is discretionary. Relief may be refused where there has been delay on the part of the applicant or it can be said that the applicant has waived or acquiesced in the validity of the decision: see generally, Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [57]-[58] (Gaudron and Gummow JJ, Gleeson CJ agreeing); SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162; [2005] HCA 24 at [80] (McHugh J); and Italiano v Carbone & Ors [2005] NSWCA 177).
4 Section 67 of the Act allows for an appeal to be made to this court on a question with respect to a matter of law. A reference to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal. The onus lies on the plaintiff to demonstrate that there has been an error with respect to a matter of law.
5 The width of s 67 was discussed in Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456. Hodgson JA (with whom Beazley and Tobias JJA agreed) stated succinctly [at para 33]:
- “… in my opinion, to establish an error of law by the Senior Member, it was necessary to show that he applied a wrong principle of law. That could be shown either from what he said, or because the ultimate result, associated with the facts that he expressly or impliedly found, indicates that he must have applied the wrong principle of law.”
6 See also Kalokerinos & Anor v HIA Insurance Services P/L & Anor [2004] NSWCA 312 at paragraphs [39], [40], [41], [47] and [59].
7 Section 67(3) of the Act provides that, after deciding the question of the subject of an appeal, the court may affirm the decision of the Tribunal, or it may make an order in relation to the proceedings in which the question arose as it, in its opinion, should have been made by the Tribunal, or it may remit its decision on the question to the Tribunal and order a rehearing of the proceedings before the Tribunal.
The Tribunal generally
8 At the outset, it is helpful to set out some of the provisions of the Act. The functions of the Tribunal are to adjudicate disputes between consumers and commercial disputes between landlords and tenants. The Tribunal is not constrained by the rigour of the courtroom. Its objects are to ensure that the Tribunal is accessible, its proceedings are efficient and effective, its decisions are fair and to enable proceedings before the Tribunal to be determined in an informal, expeditious and inexpensive manner. The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 27(3)).
9 Evidence must be given on oath or statutory declaration (s 39(1)) but the Tribunal is not bound by the rules or practice of evidence and the Tribunal may inform itself on any matter in such manner as it considers appropriate (s 28(2)). The Tribunal must conform to the rules of natural justice, but broadly speaking, has control of and responsibility for its own procedures (s 28(1) and (2)). Its business is conducted in public (s 33). Section 35 provides that the Tribunal must ensure that each party in any proceedings is given a reasonable opportunity to call or give evidence and otherwise present the party’s case (whether at a hearing or otherwise); and to make submissions in relation to the issues in the proceedings. Normally, a party to the proceedings has carriage of his or her own case and is not entitled to be legally represented (s 36(1)). The Tribunal has the power to award costs (s 53), but usually each party bears its own costs. Pursuant to s 54 of the Act, the Tribunal is obliged to use its best endeavours to bring the parties to a settlement before making an order. The Tribunal has a power to correct its decision (s 50) and the Registrar can issue a certificate, which operates as a judgment (s 51). I shall refer to ss 28 and 35 in more detail later in this judgment.
Grounds of appeal
10 The plaintiff appeals the whole of the decision of Tribunal Member Thane dated 17 October 2005. There are three main areas of appeal. They are firstly, that the plaintiff was denied natural justice/procedural fairness; secondly, that was there evidence of matter within s 68 of the Residential Tenancies Act 1987 (NSW) (RTA); and thirdly, was there evidence of apprehended bias on the part of the CTTT in its dealing with the application. I have not reproduced the numerous other grounds of appeal. Ground 2 in the summons is not pressed.
The CTTT proceedings
11 On 23 November 2004 the landlord lodged an application with the CTTT seeking an order terminating the tenancy agreement and taking possession of the premises claiming that the tenant was causing serious damage or injury pursuant to s 68 of theRTA.
12 At the outset, it is necessary to refer to s 68 of the RTA which reads:
(1) The Tribunal may on application by a landlord under a residential tenancy agreement, make an order terminating the agreement if it is satisfied that the tenant has intentionally or recklessly caused or permitted or is likely intentionally or recklessly to cause or permit:“Tribunal may terminate residential tenancy agreement where tenant causes serious damage or injury
(b) injury to the landlord, the landlord’s agent or any person in occupation of or permitted on adjoining or adjacent premises.(a) serious damage to the residential premises, or
(3) In the case of a tenancy of social housing premises, a reference in subsection 1(a) to the residential premises is taken to include a reference to any property adjoining or adjacent to the premises (including any property available for use by the tenant in common with others).”
(2) If the Tribunal makes an order terminating a residential tenancy agreement under this section, the Tribunal shall also make an order for possession of the residential premises taking effect immediately.
13 Firstly, there is a gateway provision to be decided. That is, the Tribunal has to be satisfied that the tenant has intentionally or recklessly caused or permitted, or is likely or intentionally or recklessly to cause or permit serious damage or injury to one of the persons listed in s 68(1)(b). Serious damage to residential premises was not relevant here. If the gateway provision is satisfied, the Tribunal then exercises its discretion as to whether the tenancy agreement should be terminated. No period of notice is required to be given to the tenant. The possession granted is immediate.
14 A s 68 order is contemplated in serious situations where immediate termination and possession is warranted – see Greenslade, Jason Luke, Greenslade, Jason, and Greenslade, Hazel v Cawood, Craig Aaron [1996] NSWRT 134. In NSW Land and Housing Corporation v Adams [2004] NSWCTTT 80 the Tribunal said, “Immediate termination indicates that the behaviour involved is of a serious nature and hence requires an urgent response”.
15 A number of directions hearings prior to the hearing taking place. It is the directions hearing which occurred on 2 May 2005 that is relevant.
Directions hearing – 2 May 2005
16 On 2 May 2005, the Tribunal recorded:
“On 2 May 2005 the matter was listed for directions before Member Thane. Again the applicant had not filed its material. At their request the parties were given the opportunity to have settlement discussions, which were unsuccessful.
It was pointed out to the parties that (a) the directions to provide documents had not been complied with and (b) the Tribunal’s power to terminate a tenancy pursuant to section 68 was discretionary and in light of various factors an order may not be made.
The applicant elected to proceed with the Application despite acknowledging the above factors and agreeing that there had been no further incidents at the premises. In addition, the respondent had given an undertaking that there would be no other incidents in the future.”Those factors included the fact that proceedings were based on an incident which occurred over six months ago. There was no evidence to support claims that an injury had in fact been caused, the other parties involved no longer resided at the adjoining/adjacent premises and no evidence had yet been filed in relation to any other incidents concerning the respondent and any other residents.
17 The Tribunal Member similarly recorded what occurred at the directions of 2 May 2005 in her subsequent written reasons for decision. According to Mr Ford, at this directions hearing Member Thane requested the landlord’s representative [Mr Ford] to go and explain to his supervisor Mr Carnegie that Mrs Bullman had offered to admit there was an incident and was prepared to give an undertaking that it would not occur again. Mr Ford did as he had been requested. He was instructed by Mr Carnegie not to accept Ms Bullman’s offer. The Tribunal Member then requested that Mr Carnegie appeared before the Tribunal. There was a short discussion. According to Mr Ford, at one point the Tribunal Member stated, “I should order costs against the Department. This matter is wasting the Tribunal’s and my time.”
The Tribunal Member’s decision
18 The proceedings were heard over two days, namely 15 September and 17 October 2005 before Tribunal Member Thane. There is no transcript of these days of the hearing available. The parties have relied upon affidavit evidence as to what occurred. The account given primarily by Mr Ford does not mention all that occurred. There are gaps.
19 Both parties eventually filed written material, which was before with the Tribunal Member at the hearing. On the first day of the hearing, statements were relied upon. Stephen Du Bois, Rebecca Francis, Natalie Barnes and Rebecca Prothero gave evidence for NSW Housing. The videotape of the incident was played. Ms Bullman commenced to present her case. Julie Foreman and Tracey Cairns gave evidence. After their evidence concluded the matter was adjourned part heard to 17 October 2005.
20 On 17 October 2005 Ms Lyn Bullman was cross examined by Mr Ford. Donna Bullman was then called to give evidence. While this evidence was being given, Mr Datt who appeared for Ms Bullman objected to a question. According to Mr Ford the following exchange took place:
- “MEMBER THANE: Mr Gatt, I will not allow the objection. Mr Gatt you should look for another job. You are not really suited to your current position.
- MR DATT: My name if ‘Datt’ not ‘Gatt’ and you have been calling me Mr Gatt during the course of the hearing. I am the co-ordinator of the Macarthur Legal Centre and I am experienced in these tenancy matters. I intend lodging a complaint concerning your behaviour. You have been badgering me throughout the hearing. I am going to have a drink of water and I will leave the Tribunal room and come back.
21 Mr Ford then observed Mr Datt leave the Tribunal room. The Tribunal member then said “Well it looks like we are having an adjournment”. There was an adjournment. When the Tribunal Member returned, she apologised to Mr Datt. The Tribunal Member stated that she did not mean what she had said earlier and that she had become frustrated with the proceedings. She also apologised for mistakenly calling him Mr “Gatt”. Mr Datt was the tenant’s advocate for Ms Bullman. As was said in R v Doogan; Ex parte Lucas-Smith & Others [2005] ACTSC 74 at [154] the odd intemperate or ill-considered remark made by a judicial officer will not, of itself, provide any ground for intervention on the ground of apprehended bias.
22 Prior to the adjournment, Ms Bullman was in the process of being cross examined. On resumption the Tribunal Member stated, “I am dismissing the matter on a technicality being that there was no injury proven, therefore the matter is dismissed”.
23 On 17 October 2005 the Tribunal Member decided in favour of the tenant on the basis that the NSW Housing failed to pass through the gateway provision. The Tribunal Member ordered that the application was dismissed because the landlord has failed to satisfy s 68(1)(b) of the RTA and in particular had failed to prove that the tenant had caused or permitted “injury to the landlord, the landlord’s agent or any person in occupation of or permitted on adjoining or adjacent premises”.
24 In her written reasons dated 7 November 2005 the Tribunal Member summarised each witnesses’ evidence and her observations as to what was shown on the video. The Tribunal Member decided that even if the landlord had satisfied the gateway provision, the Tribunal would have been unlikely to terminate the tenancy because:
It is also noted that the respondent was genuinely remorseful for what had occurred and had given an undertaking that it would not occur again. She said that she now had a good relationship with all her neighbours and wanted to continue to live in the home that she had lived in for nearly 30 years.”“there was no evidence that there had been previous incidents of this nature, in fact there had been no incidents since November 2004 and the other parties involved no longer lived in the street.
25 It is my view that there is no error in the Tribunal Member’s decision in relation to the second limb, namely, the discretionary decision as to whether the tenancy should be terminated effective immediately.
Procedural fairness
26 In Kioa v West (1985) 159 CLR 550 the High Court held that the duty to accord natural justice is a duty to act fairly. In the normal course, a party to judicial proceedings (as are those in a Tribunal) could expect to be apprised of the nature of the case sought to be made against it, and of the date and time fixed for hearing so as to give it a reasonable opportunity to meet that case and to advance its own.
27 In relation to procedural fairness, Mason J stated in Kioa at 584-585 that the law had now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. Procedural fairness is a notion of a flexible obligation to adopt fair procedures, which are appropriate and adapted to the circumstances of the particular case. Whether there is a denial of procedural fairness depends on the circumstances in each case.
28 In Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 the High Court discussed the manner in which procedural fairness cases are approached by the courts, and Chief Justice Gleeson said (at [37]):
- “Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
29 The plaintiff referred to Vanmeld Pty Limited v Fairfield City Council & Anor [1999] NSWCA 6 where Spigelman CJ at [50] and stated that the obligation to afford procedural fairness is a doctrine of the common law which attaches to the exercise of public power, subject to any statutory modification of the common law in that regard.
30 Section 28 of the Act reads:
“28 Procedure of Tribunal generally
(1) The Tribunal may, subject to this Act, determine its own procedure.
(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of procedural fairness.
(4) The Tribunal is to take such measures as are reasonably practicable to ensure that the parties in any proceedings understand:(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(b) the procedure of the Tribunal and any decision or ruling made by the Tribunal that relates to the proceedings.(a) the nature of the assertions made in the proceedings and the legal implications of those assertions, and
(a) is to act as expeditiously as is practicable, and
(b) is to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and
(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and
…(d) in the case of a hearing—may require the presentation of the respective cases of the parties in proceedings to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and
- (i) may dismiss any proceedings if it considers the proceedings to be frivolous or vexatious or for any other reason that appears to it sufficient,
- …”
31 Section 35 reads:
“35 Opportunity for parties to present case
The Tribunal must ensure that each party in any proceedings is given a reasonable opportunity:
(b) to make submissions in relation to the issues in the proceedings.”(a) to call or give evidence and otherwise present the party’s case (whether at a hearing or otherwise), and
32 Section 35 provides that the CTTT must ensure that each party is given “a reasonable opportunity” to present its case [my emphasis added]. There are provisions which allow the CTTT a significant degree of flexibility in adapting its procedures to the exigencies of the case in determining the manner in which the proceedings will be conducted. Nevertheless, those provisions should not be construed so as to derogate from other provisions cast in obligatory language which constitute core elements of procedural fairness - see Italiano v Carbone at [105] and [106].
33 It appears from the written reasons that the Tribunal Member accepted the evidence of Ms Bullman where she admitted that she (Ms Bullman) did pull Ms Francis’s hair and slapped her and denied that she punched Ms Francis in the face, chest or anywhere else. The Tribunal Member stated that Ms Bullman’s version of events was supported by the video. The Tribunal Member also accepted Mr Du Bois evidence that he suffered “a sore chest for a couple of days” but stated that there was no report produced in relation to those injuries. A finding was made that there was no evidence to suggest that Ms Bullman was in any way responsible for her son’s actions.
34 Both parties referred to Crook v CTTT [2003] NSWCA 370. In Crook the Court considered what constituted an “injury” under s 68 in circumstances where there has been a threatened assault but not physical contact. The Court at [31] adopted a broad interpretation of the word injury and held that it extended to recognisable psychiatric illness. There was no evidence in Crook that the threats were met by the victims “with anything other than considerable courage, calmness and dignity” and “no medical evidence was brought to identify any injury that any of the victims suffered or were likely to suffer”: [39].
35 The Tribunal Member referred to Crook and stated that the Tribunal must be able to conclude on the balance of probabilities that there was some harm or damage as a result of the respondent’s action and that slapping and pulling of hair may or may not cause harm or damage. The Tribunal Member found that as no medical evidence was produced by NSW Housing she was unable to determine whether the pulling of hair and slapping by Ms Bullman caused Ms Francis to suffer an injury.
36 NSW Housing submitted that the Tribunal in terminating the proceedings during cross examination of one of the tenant’s witnesses (Donna Bullman) and making orders without inviting submissions from the plaintiff’s representative did so in breach of ss 25 and 35 of the Act. NSW Housing submitted that it did not have an opportunity to make submissions. Those submissions it could have made were firstly, that the actions of Ms Bullman’s partner and son should have been considered as they were acting for a common purpose; and secondly, as to the meaning of “injury”.
37 NSW Housing submitted that the Tribunal was in error in finding “no injury proven” on at least three bases, firstly, slapping and pulling hair does constitute harm and is therefore an injury; secondly, slapping and pulling hair does constitute a likelihood of injury occurring in the future; and thirdly, the tenant as one of a number of person who attacked Rebecca Francis liable for the assault and all that resulted including any injury. At the hearing of this appeal, NSW Housing sought to expand its appeal points to include an extra one namely that as Ms Bullman and her son Shane were involved in a common purpose and a joint enterprise that she should be held responsible for her son’s actions.
38 While s 35 states that the Tribunal must ensure that each party is given a reasonable opportunity to call and give evidence, present its case and make submissions in relation to the issues in the proceedings; s 28(5)(c) empowers the Tribunal Member to dismiss proceedings if it considers the proceedings to be frivolous or vexatious or for any other reason that appears to it sufficient [my emphasis added]. The Tribunal Member exercised the power given under s 28(5)(c). This meant that the parties did not have the opportunity to make submissions prior to the Tribunal Member determining that there was “no injury proven”.
39 It is my view that while the Tribunal Member was entitled to dismiss proceedings, she could not do so without complying with the mandatory provisions of s 35. The proceedings should not have be dismissed without giving each of the parties a reasonable opportunity to make submissions in relation to issues in the proceedings. It was my view that the parties were not given any opportunity to address the issues in dispute such as the credibility of the witnesses, and the meaning of injury. This, in my view, constituted procedural unfairness or a denial of natural justice. The appeal is upheld. Hence it is not necessary to ventilate the further ground of appeal.
40 In Stead v State Government Insurance Commission (1986) 161 CLR 141 the High Court held at 145 that where the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially where the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference - see also Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340 at [6] and [64].
41 If both parties had been given the opportunity to make submissions, can it be said that it would have made no difference? At best, the making of submissions could have led to the Tribunal Member making a finding that the plaintiff intentionally caused injury to a person or persons on adjacent premises. However, the Tribunal Member then went on to say that even if she were wrong in the “threshold decision” the Tribunal would have been extremely unlikely to terminate the tenancy. The reasons for this decision were that there were no previous incidents of this nature, there had been no other incidents since November 2004 and Ms Francis and Mr Du Bois no longer lived in the street. The Tribunal Member characterised the incident of 21 November 2004 as a dispute between two neighbours and the video of the incident showed an out and out brawl where it was difficult to ascertain who did what to whom. Further reasons of the Tribunal Member on this issue included that Ms Bullman had lived in that home for nearly 30 years, was genuinely remorseful and had given an undertaking that it would not occur again. Even if it has been established that the plaintiff had intentionally caused an injury or injuries to the De Bois/Francis household the evidence was overwhelmingly in support of Ms Bullman on the issue as to whether or not the tenancy should have been terminated.
42 The final issues to be determined are firstly, whether the decision should be quashed; and secondly, whether relief should be granted. The Tribunal Member dismissed the application. It is my view that this decision can still stand. If I am wrong and the decision should be set aside it is my view that no further relief should be afforded. The reason is that there is no utility in quashing the decision. The evidence overwhelmingly supports the Tribunal Member’s decision on the discretionary issue. Further, over 18 months has elapsed since the incident occurred on 21 November 2004. Section 68 is only intended to be implemented in serious circumstances where immediate termination and possession is warranted. This is not the case here. There should be no order made to terminate Ms Bullman’s tenancy.
43 Costs are discretionary. Each party has been partly successful and partly unsuccessful. In these circumstances it is my view that each party should pay its/their own costs.
The Court orders:
(2) Each party is to pay its/their own costs.(1) The appeal is allowed.
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