Amir v Chief Commissioner of State Revenue (No 2) [2011] NSWADT 27 (9 February 2011)

Last Updated: 20 June 2011

Administrative Decisions Tribunal New South Wales

Case Title:	Amir v Chief Commissioner of State Revenue (No 2)
Medium Neutral Citation:	[2011] NSWADT 27
Hearing Date(s):	On the papers
Decision Date:	09 February 2011
Jurisdiction:
Before:	M Hirschhorn, Judicial Member
Decision:	(1) The Applicant is awarded its *costs in the proceedings that were incurred in relation to the preparation of its case regarding the second limb of section 26(3)(a) Land Tax Management Act 1956 (NSW) ("LTMA') including costs of the costs application (* as agreed or assessed under the Legal Profession Act 2004). (2) The Applicant's application for costs, other than those referred to in order (1) above, is otherwise dismissed. (3) The Respondent's application for costs is dismissed.
Catchwords:	Costs
Legislation Cited:	Land Tax Management Act 1956 Administrative Decisions Tribunal Act 1997
Cases Cited:	AT v Commissioner of Police, NSW [2010] NSWCA 131 Amir v Chief Commissioner of State Revenue [2010] NSWADT 93 Western City Developments Pty Ltd v Chief Commissioner of State Revenue (No 2) [2010] NSWADTAP 72 Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3 Valastar Pty Ltd v Chief Commissioner of State Revenue [2010] NSWADTAP 84 Perry Properties Pty Ltd v Chief Commissioner of State Revenue [2011] NSWADTAP 1
Texts Cited:
Category:	Consequential orders
Parties:	Roger Amir (Applicant) Cheryl Amir (Applicant) Chief Commissioner of State Revenue (Respondent)
Representation
- Counsel:	S Kaur-Bains (Respondent)
- Solicitors:	A Blair (Applicant)
File number(s):	096092
Publication Restriction:

REASONS FOR DECISION

Introduction and history

1. The Applicant has made an application for costs pursuant to section 88 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") in relation to review proceedings in the Tribunal: Amir v Chief Commissioner of State Revenue [2010] NSWADT 93.

2. The Applicant first made its application for certain costs thrown away ("the costs application") in written submissions filed, with leave, after the hearing of the review proceedings.

3. In its decision in respect of the review proceedings, the Tribunal gave leave for the Respondent to file submissions in relation to the Applicant's costs application within 21 days and for the Applicant to file any submissions in reply within a further 14 days.

4. The Tribunal noted at paragraph [137] of its decision that leave for costs submissions was provided subject to the parties coming to any "prior agreement, particularly having regard to the apparent level of legal costs vis-a-vis the relevant land tax at stake". The latter was a reference to the Applicant's written submissions (referred to at paragraph [135] of the decision) to the effect that the costs incurred by the Applicant in the proceedings now outweighed the land tax liability at stake in the proceedings (i.e. the latter being a sum of $8,720.00 for the 2009 land tax year).

5. It transpired that the parties did not reach agreement and costs submissions were filed in the Registry by the Respondents on or about 5 May 2010 opposing the application for costs and by the Applicants in reply on or about 20 May 2010.

6. Unfortunately, due to an administrative error, those submissions concerning costs were filed away by the Registry in the parties' file and were not brought to the attention of the Judicial Member constituting the Tribunal at that time.

7. As a result of certain enquiries by the Applicant's representative on 24 November 2010, the administrative error was discovered and the Registry staff wrote to both parties on 14 December 2010 to advise and apologise for the said error and to explain that the submissions had only just been referred to the Judicial Member and that a decision in relation to the application for costs would be prepared as soon as possible.

8. This decision in relation to the Applicant's costs application has been prepared by the Tribunal on the papers, as originally proposed, having regard to the above written submissions of the parties.

The primary decision

9. In Amir v Chief Commissioner of State Revenue [2010] NSWADT 93, the Tribunal decided that the purchasers of a property at Newport were the "owners" of that property for the purposes of section 26(3) and section 3(d) of the Land Tax Management Act 1956 (NSW) ("LTMA") as at 31 December 2008. Accordingly the Applicants (being the vendors of the property) were not liable to be assessed to land tax in respect of that property in the 2009 land tax year.

10. Broadly, the Tribunal decided the following matters (with references to the primary decision):

(i) The purchasers were entitled under the terms of the agreement for sale to "exclusive possession" of the Newport property and this was the case as at 31 December 2008 (at paragraph [101]). Accordingly the first limb of section 26(3)(a) was satisfied.

(ii) As there was no lease of the Newport property to a third party as at 31 December 2008, the second part (or "second limb") of section 26(3)(a) did not fall for consideration (at paragraph [106]). In this regard, the Tribunal noted the distinction between the words used in the second limb of section 26(3)(a) and section 3 of the LTMA (at paragraphs [102] - [105]).

(iii) The purchasers took "possession" of the Newport property as at 31 December 2008 and section 26(3)(b) was satisfied (at paragraph [123]).

(iv) On the basis that the requirements of section 26(3) LTMA were satisfied such that the purchasers of the Newport property were taken for the purposes of the LTMA to be the "owners" of the property, the Tribunal ordered that the decision of the Respondent to assess the Applicants to land tax in respect of the 2009 land tax year for the Newport property was to be set aside.

The Applicant's application for costs

11. The Applicant made an application for costs in its further written submissions filed prior to the hearing for "costs thrown away in this matter". In those submissions, the Applicant claimed the costs of preparing all submissions that were not related to whether the purchaser was entitled to exclusive possession according to section 26(3)(a) of the LTMA. These costs included those incurred by the Applicant in preparing unnecessary submissions and further submissions in the proceedings.

12. The Applicant noted that the "final" position of the Respondent only required the Tribunal to look into whether "exclusive possession" was conferred on the purchaser. The Applicant then submitted that this meant that the Applicant's submissions on other matters, based on the previous objection determination and submissions of the Respondent, were unnecessary and had been thrown away.

13. In its costs submissions (at paragraph [7]) the Applicant indicated that it sought all costs associated with the preparation of submissions relating to the second limb of section 26(3)(a).

The Respondent's costs submissions

14. In summary, the Respondent's case in respect of costs was as follows:

(i) Whilst the discretion available to the Tribunal under section 88 of the ADT Act is a broad one, the Tribunal must begin with a presumption that each party bears its own costs. The Applicant chose the forum of the Tribunal (as opposed to the Supreme Court where normal costs principles would apply);

(ii) Section 88 requires the Tribunal to have regard to matters directly associated with the "proceedings" and pre-litigation conduct of a party is not a relevant matter (Aqua Air Pty Ltd v Chief Commissioner of State Revenue [2009] NSWADT 239.

(iii) Costs incurred prior to the commencement of proceedings are not included (Kyriacou v Chief Commissioner of State Revenue [2009] NSW ADT 175).

(iv) The Respondent had considered section 26(3) in its submissions prior to the hearing and referred to authorities and at the hearing, its position was put to the Tribunal. The Tribunal requested the parties to provide further submissions in relation to the meaning of the second limb of section 26(3)(a).

(v) The Respondent made a concession in its further submissions as to the statutory meaning of the second limb of section 26(3)(a) in order to assist the Tribunal in determining the matter. It would be grossly unfair to award costs against the Respondent for making such a concession and thereby assisting the Tribunal to save time in determining the matter. If no such concession had been made, there would have been no risk as to costs, the Applicant would have possibly had to make fuller submissions and the Tribunal would have been put to the trouble of determining the matter.

(vi) Costs should not be awarded on account of the Respondent's conduct to narrow the issues for review. This would otherwise set a dangerous precedent and militate against parties making concessions at a hearing. This may result in hearings before the Tribunal taking longer, wasting Tribunal time, resources and for the parties having to possibly bear heavier legal costs.

15. For the first time, the Respondent also made a costs application in its costs submissions for preparing written submissions regarding the issue of "estoppel" that was raised by the Applicants for the first time at the hearing of the matter. The Respondent submitted that the Applicant had handed up cases at the hearing concerning the estoppel issue that had not previously been provided to the Respondent and had not been referred to in the Applicant's written submissions. The Respondent noted that it had ultimately been wholly successful in respect of the estoppel issue in the Tribunal's primary decision.

The Applicant's costs submissions in reply

16. In its further costs submissions, the Applicant relied upon the following sub-paragraphs of section 88(1A) of the ADT Act:

(i) sub-section 88(1A)(a) - the Applicant submitted that this section contained examples of conduct that "unnecessarily disadvantaged" a party but was not necessarily exhaustive. The Applicant claimed that it was unnecessarily disadvantaged by the way the Respondent conducted the proceedings.

(ii) sub-section 88(1A)(c)- The Applicant had the stronger claim and the fact that many of the Respondent's assertions were abandoned or altered should be taken into account by the Tribunal;

(iii) sub-section 88(1A)(d) -The nature and complexity of the proceedings including the issues raised by the Respondent that were either ultimately abandoned, altered or failed.

(iv) sub-section 88(1A)(e)-The Tribunal should take into account any other matter that it considers relevant including a balance of the costs that the Applicants were required to incur in meeting the arguments raised by the Respondent.

Legislation

17. Section 88 ADT Act is in the following terms:

88 Costs

(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.

(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv) causing an adjournment, or

(v) attempting to deceive another party or the Tribunal, or

(vi) vexatiously conducting 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) any other matter that the Tribunal considers relevant.

(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.

(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.

(4) In this section, costs includes:

(a) costs of or incidental to proceedings in the Tribunal, and

(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.

18. Recently in Western City Developments Pty Ltd v Chief Commissioner of State Revenue (No 2) [2010] NSWADTAP 72, the Appeal Panel said the following in relation to section 88:

7 The current version of s 88 incorporates a test of "fairness" in sub-s 1A, rather than the previous incarnation of the section, which incorporated a criterion that there should be 'special circumstances warranting an award of costs'. The current version became operative on 1 January 2009.

8 Section 101 of the Taxation Administration Act 1996 provides for the Tribunal to exercise similar powers, including in par (e):-

"make any further order as to costs or otherwise as it thinks fit."

9 In Salon Today Pty Ltd v M M I R Pty Ltd [2009] NSWADT 71 (a case decided under the Retail Leases Act 1994), the Tribunal stated at [72]:-

What the Parliament has done, in its 1 January 2009 amendments, is recognise that there is a need for this Tribunal to be more flexible and widen the scope of a litigant's entitlement to costs. ...[T]he result of this re-assessment by the Parliament is a different test, a test of fairness, having regard to a number of parameters/factors.

19. The Court of Appeal, in AT v Commissioner of Police, NSW [2010] NSWCA 131, at [26] said, in relation to sub-section 88(1A) (per Basten J, with whom the other members of the Court agreed):-

"The condition of engagement of the power to order costs... must be the satisfaction of the court exercising the power that the circumstances for an order have arisen. Nor is the criterion of fairness qualitatively different from the exercise of an unfettered discretion."

and at [32] to [33]:-

[32] The appellant's submissions ... should be accepted: they strongly favour the individual appellant obtaining reimbursement for part at least of her legal expenses so far. The fact that the appellant has been successful at both levels of appeal is a matter which can be taken into account under subs (1A)(e). A further factor to be taken into account is that the respondent, being a State agency, was also required to act as a model litigant: Mahenthirarasa v State Rail Authority of NSW (No 2) [2008] NSWCA 201; 72 NSWLR 273 (Basten JA, Giles and Bell JJA agreeing). That is not to say that the Commissioner was not entitled to insist that statutory procedures be complied with. However, where the statutory scheme was entirely unclear, and the Commissioner's construction was not accepted, it is a factor which militates in favour of the Commissioner bearing the costs of the member of the public seeking to avail herself of a statutory right of review.

[33] That approach does not diminish the force of the general principle that each party should bear its own costs in the Tribunal, a principle applicable at both first instance and before the Appeal Panel. Although an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in subs (1A), but subject to the generality of para (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the Tribunal Act.

20. It is also useful to set out what was said by the Appeal Panel in Jonamill Pty Ltd v Alramon Pty Ltd (No.2) (RLD) [2010] NSWADTAP3 at [41] to [44] concerning the operation of section 88(1A)(c) (as cited by the Appeal Panel recently in a costs decision in the Revenue Division in Valastar Pty Ltd v Chief Commissioner of State Revenue [2010] NSWADTAP 84):

"41 As we view the matter, an important question of principle on which our decision on this application depends is the degree of weight that we should attribute to the two decisions in VCAT on which Mr Sneddon placed reliance.

42 For two reasons, we believe that we should not treat these decisions as controlling the interpretation of section 88(1A)(c), for the purposes of these proceedings, to such an extent that this subparagraph should only be considered applicable if Jonamill's case in the appeal could properly be characterised as 'unarguable, unreasonable or untenable'.

43 The first reason is that to apply the subparagraph in this way is to ignore that part of its wording that refers to 'the relative strengths of the claims made by each of the parties'. The subparagraph refers to 'a claim that has no tenable basis in fact or law' only by way of exemplifying cases in which there is a very great disparity between these 'relative strengths'.

44 Secondly, to take this approach would involve ignoring the authorities (cited above at [26-30]) establishing that under section 88 in its previous form costs were more readily awarded when either (a) the case arose in the Retail Leases Division or (b) costs were being sought against an unsuccessful appellant. The present proceedings fall into both these categories."

Discussion and Reasons for Decision

21. It is clear from the words of section 88(1) ADT Act itself that the fact of the success of the Applicant's application to the Tribunal is insufficient of itself to result in an award of costs. Each party should bear its own costs in the proceedings unless the Tribunal is satisfied it is fair to award costs having regard to the matters in section 88(1A).

22. In relation to "fairness", the Applicant has identified some particular sub-sections in section 88(1A) that it says are relevant in the present case and these are considered in turn below together with the Respondent's costs submissions.

Sub-section 88(1A)(a)

23. In relation to sub-section 88(1A)(a), the Tribunal is not persuaded by the Applicant that the Respondent conducted the proceedings in a way that unnecessarily disadvantaged the Applicant within the meaning of that sub-paragraph. The Applicant does not point to any of the examples of conduct in section 88(1A)(a)(i)-(vi) inclusive as being applicable in the present case and, in the view of the Tribunal, this was rightly so.

24. The proceedings were the subject of only one directions hearing prior to the hearing and the orders of the Tribunal regarding the filing of evidence and submissions were adhered to by both parties. There were no adjournments. The Respondent did not conduct the proceedings vexatiously.

25. Whilst it is correct that the Respondent, having submitted a particular construction of the second limb of section 26(3) LTMA prior to the hearing then abandoned that submission at the hearing and in further written submissions, (having the consequence that the Applicant had to expend time and costs in answering the Respondent's initial submission before and at the hearing and then the altered submissions) this of itself would not appear to fall within the type of conduct envisaged by ss88(1A)(a).

26. Although the list of examples in the above sub-section is indeed not exhaustive, the examples tend to focus on whether the conduct of a party in the proceedings has unnecessarily disadvantaged another party in terms of failing to comply with the orders and directions of the Tribunal or the requirements of the law and/or causing unnecessary adjournments or otherwise vexatiously conducting the proceedings. Where a party simply advances a particular construction(s) of a statutory provision, this would not appear to be a matter that would fall for consideration under this sub-section 88(1A)(a), although depending on the relative strength the submission in question, it may be a factor under sub-section 88(1A)(c) or indeed sub-section 88(1A)(e) in appropriate cases. This is discussed further below.

Sub-section 88(1A)(c)

27. In relation to sub-section 88(1A)(c), the Tribunal does consider that there was a significant disparity in strength in law between the claims of the parties in relation to the construction and operation of the second limb of section 26(3) of the LTMA.

28. As set out in the primary decision at paragraphs [49]-[52], the Respondent altered its position in relation to the construction and operation of the above provision at the hearing and then again in further written submissions.

29. However it is not the fact that the Respondent altered its position that is relevant to consider in relation to sub-section 88(1A)(c). As the Respondent submitted, conduct in narrowing the issues in dispute should not result in an award of costs against the party that made the concession or this might well militate against parties making concessions at a hearing.

30. The relevant matter to consider is the strength of the Respondent's initial submissions in relation to the second limb of section 26(3)(a) as compared with those advanced by the Applicant. As set out in the primary decision at [102]-[107] the Tribunal considers that the Applicant had a significantly stronger case in this regard at law and indeed factually, since it was clear there had been no lease of the Newport property to a third party as at 31 December 2008 (refer paragraph [10]).

31. In the Tribunal's view, this is a strong factor in favour of an award of the costs "thrown away" in relation to submissions by the Applicant during the proceedings that concerned the second limb of section 26(3). It is clear that one of the reasons that the Applicant had to initiate review proceedings in the first place was to challenge the view held by the Respondent that because the Applicants as vendors were receiving licence fees from the property (as opposed to the purchasers) section 26(3) did not operate to displace the Applicants as the "owners" of the property for land tax purposes (refer paragraph [30] and [49] of the primary decision for the respective positions of the Applicant and Respondent up until the time of the hearing).

Sub-section 88(1A)(d)

32. The Tribunal does consider in this particular case, that the nature and the complexity of the proceedings ought to be taken into account in respect of an award of costs. As noted in the primary decision at paragraph [53], section 26 LTMA was substantively amended in 2001 (with effect for the 2003 land tax year onwards). Despite this amended provision having been in effect for some time, it had not previously been the subject of consideration by the Tribunal and/or the Courts, including, in particular, the construction and operation of the two limbs of section 26(3) LTMA.

33. It was necessary for the Applicant to bring the review proceedings to challenge the Respondent's initial construction of the second limb of section 26(3)(a), that is, that the section required the purchasers to be entitled to receive, if the property was let to a tenant, any rents and profits derived from the tenancy. In the present case, as the purchaser was not entitled to its own licence fees (i.e. the licence fees it paid to the Applicant vendors) the Respondent had contended that this second limb of section 26(3)(a) was not satisfied. It was not until the hearing of the matter that the Respondent conceded that there was some inconsistency for a purchaser in satisfying both limbs of section 26(3) simultaneously under its construction (i.e. a purchaser being entitled to "exclusive possession" but at the same time entitled to receive the rents and profits of the property).

34. The fact of the complexity of the provision and that the Respondent's construction was ultimately not accepted militates in favour of the Respondent bearing some of the costs of the Applicants (i.e. being members of the public seeking to avail themselves of a statutory right of review: see AT v Commissioner of Police, NSW [2010] NSWCA 131 at [32]).

35. Recently the Appeal Panel in Perry Properties Pty Ltd v Chief Commissioner of State Revenue [2011] NSWADTAP 1 at [27]- [28] found that the lack of any binding authority which bore directly on the issue was ' a deciding factor" in determining that the Applicant should have an order for costs. It was noted in that case that the issue involved a difficult one of construction of a legislative instrument and the lack of binding authority together with the success of the Applicant provided a basis for an award of costs.

S ub-section 88(1A)(e)

36. In the present case, the Tribunal is minded to take into account the fact that the Applicant had no real choice other than to challenge the Respondent's construction of the second limb of section 26(3). It was ultimately successful in doing so. Up to the time of the hearing, the Applicant was put in the position of having to expend time and costs in order to meet the submissions made by the Respondent (AT v Commissioner of Police NSW [2010] NSWCA 131 at [33]).

37. At the hearing of the matter, a different construction of the second limb of section 26(3) was advanced by the Respondent. As this was a new submission, the Tribunal gave optional leave to the parties to prepare written submissions regarding this construction so as to ensure that the Tribunal took into account the position of both parties and to afford to the parties (in particular, the Applicant), procedural fairness. The optional leave was granted particularly in view of the fact that the Applicant was being confronted with a new submission on the day of the hearing.

38. Both parties elected to make additional submissions and these arose primarily because the Respondent changed its argument concerning the construction of the second limb of section 26(3) at the hearing. Although the Tribunal is very conscious that parties should not generally be at risk of costs because they choose to make a concession or otherwise narrow the issues at a hearing, in this particular case, the lateness of that concession and the fact that the change in the argument occurred on the day of the hearing itself is a factor in favour of awarding some compensatory costs to the Applicant.

39. The Tribunal has also taken into account that the final written submissions of the Respondent (to which the Applicant then replied) contained some further submissions regarding the construction and operation of section 26(3) that had not been made at the hearing and an ultimate concession that the second limb of section 26(3) was no longer relevant to the present proceedings.

Consideration

40. In having regard to the matters above in section 88(1A), the Tribunal has come to the conclusion that it is fair to award some costs to the Applicant, being the portion of costs that it incurred in relation to conducting its case in respect of the second limb of section 26(3)(a) LTMA. It is fair that the Applicant should be compensated for these particular costs and that it has met the "relatively low hurdle" in this regard (AT v Commissioner of Police [2010] MSWCA 131 at [33]).

41. It should be noted that the Applicant has not sought all of its costs in this matter. In so far as the costs of the Applicant in meeting the other parts of the case ( that is, the first limb of section 26(3)(a) and section 26(3)(b)), these costs are not in the same category as those referred to above and each side should bear its own costs in this regard.

The Respondent's costs application

42. The Respondent made an application for part of its costs in its written costs submissions (being the Respondent's costs of preparing submissions on the "estoppel issue" following the hearing of the matter).

43. By way of background, at the hearing, the Applicant claimed that the Respondent had conceded that the purchasers had "exclusive possession" of the property in his letter disallowing the objection. The Applicants further submitted that the Respondent should be estopped from altering its position regarding exclusive possession for the purposes of the hearing ("the estoppel issue").

44. The Respondent denied it had made such a concession in oral argument at the hearing. The Respondent also requested the indulgence of the Tribunal in preparing further submissions regarding some cases that the Applicant had raised orally at the hearing but that had not been notified in advance (in particular, Delmege v Chief Commissioner of State Revenue [2009] NSWSC 1052).

45. In the present case, the Tribunal granted leave to the Respondent to file further submissions regarding this issue in order to cure any possible disadvantage or prejudice that may have been caused to the Respondent. The leave was granted directly as a result of a request made by the Respondent. The Respondent has not identified any particular factors in section 88(1A) that would make it fair for the Tribunal to award the costs of preparation of those submissions to the Respondent other than noting that the Respondent was ultimately successful in relation to the estoppel issue.

46. Based on what the Applicant submitted at the hearing regarding the estoppel issue, the Tribunal is of the view that the Applicant would have likely been unsuccessful irrespective of the further written submissions filed in relation to the matter by the Respondent. This was also not an issue where there was an absence of any binding authority from the Tribunal or the Courts (unlike section 26(3) LTMA).

47. In the particular circumstances, the Tribunal does not consider it fair to award the costs of preparation of the submissions regarding the estoppel issue to the Respondent. Both parties should bear their own costs in relation to submissions made concerning this issue pursuant to section 88 ADT Act.

Orders

48. For the above reasons, the Tribunal makes the following orders:

(i) The Applicant is awarded its *costs in the proceedings that were incurred in relation to the preparation of its case regarding the second limb of section 26(3)(a) LTMA including costs of the costs application (* as agreed or assessed under the Legal Profession Act 2004).

(ii) The Applicant's application for costs, other than those above, is otherwise dismissed.

(iii) The Respondent's application for costs is dismissed.

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