Randhawa v Green and Associates Pty Ltd

[2016] NSWCATCD 10

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Randhawa v Green & Associates Pty Ltd [2016] NSWCATCD 10
Hearing dates:	On the papers
Decision date:	04 February 2016
Jurisdiction:	Consumer and Commercial Division
Before:	M Eftimiou, General Member
Decision:	1. A hearing on costs is dispensed with pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013.  2. The application for costs is dismissed.
Catchwords:	COSTS – whether special circumstances exist
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Consumer Trader and Tenancy Tribunal Act 2001 Consumer Trader and Tenancy Tribunal Regulation 2009
Category:	Costs
Parties:	Guneet Randhawa (Applicant) Green & Associates Pty Ltd (Respondent)
Representation:	Self represented Applicant Mr Green for the Respondent
File Number(s):	GEN 15/66317
Publication restriction:	Nil

Reasons for decision

Introduction

1. On 14 December 2015 the applicant filed an application with the Tribunal seeking an order that the respondent pay to him $2,715.00 and that further the respondent provided with written receipts for the services provided by it to the applicant. The proceedings were withdrawn by the applicant at the hearing of the matter on 4 January 2016. The respondent sought an order as to costs. The applicant sought an opportunity to make written submissions in relation to the costs application. The Tribunal made procedural directions for the filing of submissions as to costs and with the parties consent advised that the costs application would be determined without conducting a further hearing. For the reasons set out below, I have dismissed the application.

Costs application

2. In the application for costs, the respondent sets out the procedural history of the dispute between the parties.

3. The history of the matter can be summarised as follows:

• The parties entered into an agreement for the provision of legal services by the respondent to the applicant in April 2015.

• Invoices rendered by the respondent to the applicant for services provided in accordance with the agreement between the parties remain unpaid.

• On 1 December 2015 the respondent filed a Statement of Claim in the NSW Local Court seeking payment of money in the sum of $3,857.36 for the unpaid invoices.

• On 14 December 2015 the applicant filed an application with the Tribunal seeking an order that the respondent provide him with invoices for works rendered and an amount of money being $2,715.10.

• On 14 December 2015 the respondent wrote to the Tribunal requesting that the matter be dismissed pursuant to s 55(1)(b of the Act.

• On 15 December 2015 the respondent wrote to the applicant advising him that his claim was (a) misconceived and lacking in substance, frivolous and vexatious and possibly a deliberate abuse of process to frustrate the Local Court proceedings. The respondent advised the applicant that if the matter is not withdrawn that an application for costs will be made on 4 January 2016.

4. In support of the application for costs, the respondent submits:

• The Tribunal has no jurisdiction to hear the applicant’s claim;

• Correspondence had been forwarded to the applicant by the respondent prior to the hearing advising him that the Tribunal has no jurisdiction to hear the matter and advising him that the claim is misconceived, lacking in substance and frivolous and a costs application would be made against him.

• Local Court proceedings had been commenced by the respondent prior to the lodgement of the application.

• The receipts that the applicant is requesting be provided to him, have in fact been provided to him on three separate occasions.

• The applicant has had ample opportunity before the hearing to withdraw the proceedings.

Response to costs application

5. The applicant was given an opportunity by the Tribunal, at his request, to provide written submissions in relation to the respondent’s application for costs. Submissions were received on 11 January 2016.

6. In summary, the applicant submits that an order for costs should not be made against him because:

• In December 2015 the applicant sought advice as to having the matter transferred from the Local Court to the Tribunal. This was to ensure that there was a reduction in costs and effective self representation. The applicant “inferred” from the advice given to him that “the Tribunal would be the best place to move these proceedings as the claim related to an issue with defective services.”

• The Registry at NCAT also confirmed to him on 30 December 2015 to attend the hearing.

• The respondent ignored emails sent by the applicant which detailed the move to NCAT and required an urgent response.

• The applicant denies that the proceedings are frivolous, or vexatious or otherwise misconceived or lacking in substance. In summary the applicant states that his intention has been to resolve a genuine dispute between the parties relating to alleged improper receipts, misconducts and overcharging of bills from the respondent. The proceedings were commenced in the Tribunal with the intent of reducing the applicant’s costs and he has received advice from the Local Court to indicate that it was reasonable for him to commence proceedings in the Tribunal.

7. The respondent filed written submissions in response to the applicant’s submission. In brief summary:

• Lengthy documents were provided to the applicant prior to 4 January 2015 bringing to his attention the provisions of the Act and other legislation to indicate that the Tribunal had no jurisdiction to entertain his claim.

• The history of the relationship between the parties is again repeated.

• The applicant’s submissions are false and misleading.

Jurisdiction

8. Section 60 of the NCAT Act applies in respect of the application for costs.

9. This section relevantly provides:

60 Costs

(1) Each party to proceedings in the Tribunal is to pay the party’s own costs.

(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to 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) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36 (3),

(g) any other matter that the Tribunal considers relevant.

…

10. Rule 38 of the Civil and Administrative Tribunal Rules 2014 modifies the application of s 60 in proceedings before the Consumer and Commercial Division of the Tribunal. However, Rule 38 only applies to matters where the amount claimed on in dispute exceeds $30,000.00. As the application before the Tribunal was for orders for the supply of receipts and a payment of money of $2,715.50, Rule 38 has no application in these proceedings.

Issues

11. The issue to be determined is;

1. Has the respondent established that there are special circumstances warranting an order for costs in its favour?

Consideration

12. Pursuant to s 50(1)(c) of the NCAT Act and the consent of the parties the question of costs is determined on the papers.

13. An order dispensing with a hearing under s 50(1)(c) of the NCAT Act has accordingly been made.

14. The application for costs by the respondent refers to ‘exceptional circumstances’ and argues the case for a costs order on the basis that:

• The conduct of the applicant has been nothing less than extraordinary.

• There are too many instances of false and misleading statement to even count.

• The applicant knew that the vast majority, if not all, of those statement, were false and misleading, but even if that was not the case (which we deny) his conduct is still exceptional nonetheless and in a manner completely lacking in respect for the respondent, the Tribunal and, contrary to the applicant’s submissions, the guiding principle and other provisions of the NCAT Act.

15. I am not satisfied that these factors, or any other aspect of the proceedings establish special circumstances warranting an order for costs.

16. The Tribunal is not satisfied that the applicant has conducted the proceedings in a way that unnecessarily disadvantaged the respondent. The matter was withdrawn by the applicant at the first instance. The only disadvantage caused to the respondent is that it felt the need to attend the Tribunal on 4 January 2016. The respondent had an option of providing written submissions for the Tribunal to consider if it was not able to attend on 4 January 2016. The Tribunal is not satisfied that attending the Tribunal on one occasion to defend proceedings has caused to the respondent unnecessary disadvantage. The proceedings were not prolonged by the applicant as they were withdrawn at the first instance.

17. Insofar as the merits of the applicant’s claim is concerned, whilst section 79M of the Fair Trading Act 1987 precludes the Tribunal from hearing claims relating to the fairness or reasonableness of the costs charged by a barrister or solicitor, it does not otherwise bar all actions against the same before the Tribunal.

18. The Tribunal finds that there is nothing in the nature and complexity of the proceedings that would satisfy it that there are special circumstances.

19. The Tribunal has carefully considered the submissions of the respondent that the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance. The Tribunal is not satisfied that the proceedings were frivolous or vexatious. The applicant holds the view, rightly or wrongly, that he should not be responsible for paying the respondent’s fees and that the receipts that have been issued to him by the respondent are not adequate receipts. This does not make is claim either frivolous or vexatious.

20. The Tribunal is not satisfied that the proceedings are otherwise misconceived or lacking in substance. The applicant may be studying law but for the purpose of these proceedings he was unrepresented and it is not improbable to suggest that there may be substance to his application albeit not in this jurisdiction. The application was accepted by the Tribunal and the applicant was not advised that the Tribunal has no jurisdiction to entertain his claim. Whilst there is no doubt that the respondent tried on a number of occasions to advise the applicant that the Tribunal has no jurisdiction to hear and determine the claim, it is not unreasonable having regard to the litigation between the parties that the applicant did not rely on the information given to him by the respondent that the Tribunal had no jurisdiction to hear and determine the claim and that he did not accept the advice of the respondent.

Conclusion

21. The Tribunal is not satisfied that the respondent has established special circumstances warranting an order for costs. The application is accordingly dismissed.

M Eftimiou

Senior Member

Civil and Administrative Tribunal of New South Wales

4 February 2016

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: 07 April 2016