The Owners - Strata Plan No. 37762 v Dinh Phuong Dun Pham

[2006] NSWSC 1442

CITATION:	The Owners - Strata Plan No. 37762 v Dinh Phuong Dung Pham & Anor [2006] NSWSC 1442 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	29/11/06 and written submissions thereafter
JUDGMENT DATE :	22 December 2006
JURISDICTION:	Supreme Court
JUDGMENT OF:	Rothman J
DECISION:	In addition to the orders made on 29 November 2006-; (iv) the first defendant’s application to the Tribunal in matter CSC05/10475 be dismissed; (v) the first defendant pay the plaintiff’s costs of and incidental to these proceedings, as agreed or assessed; (vi) the first defendant is granted an indemnity certificate under s6 of the Suitors’ Fund Act 1951 (NSW); (vii) no order as to the costs of the proceedings before the Consumer, Trader and Tenancy Tribunal; (viii) these proceedings are otherwise dismissed.
CATCHWORDS:	TRIBUNALS - Consumer, Trader and Tenancy Tribunal is court for purposes of Suitors Fund Act 1951 (NSW) - Tribunal has power to award costs - costs generally
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW) Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) Legal Profession Act 2004 (NSW) Strata Schemes Management Act 1996 (NSW) Suitors' Fund Act 1951 (NSW)
CASES CITED:	Canceri v Taylor (1994) 1 IRCR 120 Knight v FP Special Assets Limited (1992) 174 CLR 178 Krslovic Homes v Timothy Sparkes [2004] NSWSC 374 Oshlack v Richmond River Council (1998) 193 CLR 72 R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 The Owners - Strata Plan No. 37762 v Dinh Phuong Dung Pham & Anor [2006] NSWSC 1287 Waterside Workers Federation of Australia v JW Alexander (1918) 25 CLR 434
PARTIES:	P: The Owners - Strata Plan No. 37762 D1: Ms Dinh Phuong Dung Pham D2: Consumer, Trader and Tenancy Tribunal
FILE NUMBER(S):	SC 153007/2005
COUNSEL:	P: Mr M D Young D1: Mr C D Norton
SOLICITORS:	P: Andreones Pty Ltd Lawyers D1: Woolf Associates, Solicitors (no longer appearing)
LOWER COURT JURISDICTION:	Consumer Trader and Tenancy Tribunal of NSW
LOWER COURT FILE NUMBER(S):	SCS05/19616; 05/19610
LOWER COURT JUDICIAL OFFICER :	Member Moore
LOWER COURT DATE OF DECISION:	18 October 2005

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

22 December 2006

153007/2005

The Owners – Strata Plan No. 37762 v Dinh Phuong
Dung Pham & Anor

JUDGMENT

1 HIS HONOUR: On 29 November 2006 judgment issued granting, to the extent necessary, leave to appeal against the orders of the Consumer, Trader and Tenancy Tribunal made on 18 October 2005, allowing the appeal and quashing the orders. I gave leave for the parties to address on any further orders that are required and on the question of costs. My earlier judgment is The Owners - Strata Plan No. 37762 v Dinh Phuong Dung Pham & Anor [2006] NSWSC 1287 and this judgment should be read in conjunction with that.

2 The parties appeared before me on 11 December 2006 on which date a further timetable was set for the filing of written submissions, which concluded substantially in compliance with the directions given, the last of those Submissions being received on 19 December 2006.

3 The issues agitated on these questions took on a degree of unwarranted complexity associated with the status of any stay that may currently exist in the Land & Environment Court and the status of the judgment of that Court. These issues do not affect my judgment.

4 I deal with the issues for which leave had been granted.

Further Orders

5 Having given judgment that the orders of the Tribunal made on 18 October 2005 be quashed I have made no order disposing of the application before the Tribunal. Both parties accept that such an order is necessary and I will make that order.

Costs of Proceedings before the Supreme Court

6 The plaintiff has been wholly successful in these proceedings and as a consequence it is appropriate that the first defendant pay the costs of the proceedings. Some issue has arisen in relation to the wording and the use of the words “incidental to” in any proposed order.

7 Ordinarily orders that I make in relation to costs are orders of and incidental to the proceedings in question. It is a matter for the Costs Assessor under the provisions of the Legal Profession Act 2004 (NSW) whether costs have properly been incurred in relation to the proceedings in question. The term “incidental to” widens the net of costs covered by the order beyond the costs of the proceedings directly.

8 It is nevertheless subject to the assessment of party/party costs pursuant to the terms of s353 of the Legal Profession Act 2004 (NSW) and a Costs Assessor must consider whether or not it was reasonable to carry out the work to which the costs relate, whether the work was carried out in a reasonable manner and what is a fair and reasonable amount of costs for the work concerned. The Assessor must determine the issue of costs and issue a certificate therefor. From that certificate and/or assessment there are appeals to a panel and, to the extent allowed, the Supreme Court of New South Wales.

9 In other words, while it may be surplusage, the use of the words “incidental to” does not affect the role of the Costs Assessor in determining appropriate costs “associated with”, and incurred because of, the proceedings.

10 Other than the issue relating to the use of the words “incidental to” in any form of costs order, the first defendant does not resist the making of an order that the defendant pay the costs of the plaintiff in these proceedings. Such a concession is appropriate and proper. The discretion reposed in the Court under s98 of the Civil Procedure Act 2005 (NSW) to order costs must be exercised judicially and/or, in any ordinary circumstance, require an order that the successful party’s costs be paid by the unsuccessful party: Oshlack v Richmond River Council (1998) 193 CLR 72 at 97. I order that the plaintiff’s costs of and incidental to the proceedings (as that term is properly understood) be paid by the first defendant.

A Certificate under the Suitors’ Fund Act 1951 (NSW)

11 The Suitors’ Fund Act 1951 (NSW) (“the Act”) empowers this Court to grant to the respondent to a successful appeal before it (or before the High Court) an indemnity certificate in respect of the appeal.

12 Such an indemnity certificate entitles the respondent to be paid from the Fund an amount equal to the appellant’s costs of the appeal, in respect of which the certificate was granted (or, irrelevantly, any earlier appeal in a sequence of appeals), ordered to be paid and actually paid and 50% of the costs that the respondent herself or himself incurred.

13 The maximum amount payable from the Fund for any one appeal is, in relation to an appeal to this Court, $10,000.

14 With one exception, to which I will shortly turn my attention, there is little doubt that the respondent would, in ordinary circumstances, be entitled to an indemnity certificate in relation to the appeal to this Court. As earlier stated and because the first defendant is required to pay the costs of the proceedings in this Court, an indemnity certificate will, up to the maximum amount, pay the plaintiff’s costs in these proceedings and half of the first defendant’s costs in these proceedings.

Status of Tribunal

15 The issue to which attention needs to be paid is the status of the Consumer, Trader and Tenancy Tribunal (“the Tribunal”) under the Act. Section 6(1) of the Act refers to an appeal “against the decision of a court”. Court is defined inclusively as including “such Tribunals or other bodies as are prescribed”. No prescription exists. The question becomes whether, for the purpose of the Suitors’ Fund Act 1951 (NSW) the Tribunal is a court.

16 This issue was the subject of consideration by this Court in 2004. That consideration has not led to an amendment of the legislation. Justice Shaw in Krslovic Homes v Timothy Sparkes [2004] NSWSC 374 analysed the status of the Tribunal (and its predecessor) and determined that it was a court for the purposes of the Suitors’ Fund Act 1951 (NSW). With respect, the analysis and conclusion of his honour is manifestly correct.

17 The Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) confers on the Tribunal a number of functions, some of which are recited in my earlier judgment. Section 21 of the last mentioned Act confers on the Tribunal such jurisdiction to decide matters and such powers to make orders and otherwise exercise any function in connection with any such decision as is conferred on it by this or any other Act. It is obvious from the terms of s67, and other sections, that the Tribunal has the power to decide matters which involve a matter of law and part of those functions include the functions conferred by s138 of the Strata Schemes Management Act 1996 (NSW). Those provisions require the Tribunal to determine whether or not a function has been exercised under that Act between parties who are affected by and/or have a legal interest in the operation of the strata scheme. The Tribunal is also entitled to determine whether or not there has been unreasonable conduct in the refusal of consent to building work under the provisions of s140.

18 The title “Tribunal” or “court” may, in the case of the latter, indicate that a court has been created but says nothing about the status of a Tribunal, so called. Whether a tribunal is a court or not is a matter of analysis. The High Court, for example has held that bodies called Courts were not: see for example Waterside Workers Federation of Australia v JW Alexander (1918) 25 CLR 434 at 463-464 and R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254. While each of those two cases were decided in the context of Chapter III of the Constitution, in each case the body was described in its title and in the establishment provisions as a court but the High Court held it was not. Similarly a body, especially one created by a state legislature, entitled a Tribunal can equally be a court.

19 A court for the purposes of the Suitors’ Fund Act 1951 (NSW) must at least include bodies that exercise judicial power. The Tribunal in this instance from time-to-time exercises judicial power and resolves justiciable controversies, as that term is strictly understood.

20 The conclusion to which I have reached is re-enforced by the judgment of Shaw J to which I have referred and the acceptance by the legislature of that state of affairs since at least 2004.

21 There is little doubt that, having reached that conclusion, it is appropriate to issue an indemnity certificate and I do.

Costs before the Tribunal

22 One of the issues between the parties is the question of costs in the proceedings before the Tribunal the defendant submits that I should refer to the Tribunal the question of any award as to costs.

23 Section 192 of the Strata Schemes Management Act 1996 (NSW) provides:

“[192] The Tribunal may not make any order for the payment of costs except as specifically authorised by this Act or in relation to an order dismissing an application or appeal because:
(a) the application or appeal is frivolous, vexatious, misconceived or lacking in substance, or
(b) a decision in favour of the applicant or appellant is not within the jurisdiction of the Tribunal.”

24 No other provisions of the Act specifically authorise the making of an order as to costs.

25 The Strata Schemes Management Act 1996 (NSW) does not expressly invest the Tribunal with a general power to award costs and no other provision performs that task. The Tribunal is not empowered or invested with a general power to act as a court of law and equity or otherwise to exercise inherent powers which would imply the power to award costs.

26 Section 192 of the Act is a provision which restricts the power to award costs otherwise granted. No other power exists.

27 The power to award costs was a power inherent in courts of equity but otherwise required, in the case of statutory courts or Tribunals, a particular and express conferral of power on the Court. No such conferral has been enacted: see Knight v FP Special Assets Limited (1992) 174 CLR 178; Canceri v Taylor (1994) 1 IRCR 120.

28 The provisions of s192 of the Strata Schemes Management Act 1996 (NSW) is a restriction on the power to award costs, not the grant of jurisdiction so to do. There being no other general provision to enable the Tribunal to award costs, there is no power in the Tribunal to award costs. This means, absent a general power, that the Tribunal is a strictly no costs jurisdiction. In those circumstances it is inappropriate for this Court to award costs in the proceedings below.

29 I make the following orders further and in addition to the orders made on 29 November 2006:

(iv) the first defendant’s application to the Tribunal in matter CSC05/10475 be dismissed;

(v) the first defendant pay the plaintiff’s costs of and incidental to these proceedings, as agreed or assessed;

(vi) the first defendant is granted an indemnity certificate under s6 of the Suitors’ Fund Act 1951 (NSW);

(vii) no order as to the costs of the proceedings before the Consumer, Trader and Tenancy Tribunal;

(viii) these proceedings are otherwise dismissed.

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25/01/2007 - Case name amendment - Paragraph(s) Coversheet