Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Taylor Construction Group Pty Ltd v The Owners - Strata Plan No 92888 [2020] NSWCATAP 277 Hearing dates: On the papers Date of orders: 18 December 2020 Decision date: 18 December 2020 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President D Robertson, Senior Member Decision: 1. A hearing on costs is dispensed with. 2. The Appellants are to pay to the Respondent the Respondent's costs of the appeal on the ordinary basis as agreed or as assessed. Catchwords: COSTS – No issue of principle Legislation Cited: Civil & Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Cases Cited: Allen v Tricare (Hastings) Ltd [2017] NSWCATAP 25 Texts Cited: None cited Category: Costs Parties: Taylor Construction Group Pty Ltd (First Appellant) Frasers Putney Pty Ltd (Second Appellant) The Owners - Strata Plan No 92888 (Respondent) Representation: Counsel: W Chan (First Appellant) D Weinberger (Second Appellant) T Davie (Respondent) Solicitors: Crisp Law (First Appellant) Minter Ellison (Second Appellant) JS Mueller & Co (Respondent) File Number(s): AP 19/55886 Publication restriction: Nil Decision under appeal Court or tribunal: Civil & Administrative Tribunal Jurisdiction: Consumer & Commercial Division Citation: [2020] NSWCATCD 63 Date of Decision: 15 November 2019 Before: P Boyce, Senior Member File Number(s): HB 18/34135 REASONS FOR DECISION Background 1. In a decision published on 4 August 2020, we made orders dismissing the appeal and made directions for the parties to make submissions concerning costs of the appeal. We directed the parties to make submissions as to whether we may decide costs on the papers and dispense with a hearing on costs. 2. Since then, the Respondent has made submissions on costs (including stating that it would be appropriate to decide costs on the papers and dispense with a hearing), but no submissions have been received from the Appellants. 3. The appeal concerned a home building claim and provisions of the Home Building Act 1989 (NSW). The order made at first instance and affirmed on appeal was to the effect that the Appellants were to remove Biowood attachments from the façade of a building owned by the Respondent. 4. The Respondent's submissions are brief and make these points: 1. The Respondent was successful in the appeal and at first instance. 2. The proceedings are a home building claim in the Consumer & Commercial Division of the Tribunal and there can be "little doubt" that the cost of replacing the cladding would significantly exceed $30,000. Costs were awarded to the Applicant at first instance (namely the Respondent to the appeal). 3. The appeal was lodged after 1 January 2016 and therefore pursuant to rule 38A of the Civil & Administrative Tribunal Act Rules 2014 ( the Rules), the old rule to the effect that there was no entitlement to costs in the appeal, even where there was an entitlement to costs in the Tribunal at first instance is no longer applicable. Consideration 1. We agree with the Respondent's submissions that it would appear from the evidence that there can be little doubt that the cost of replacing the Biowood cladding would significantly exceed $30,000. In any event, there has been no submission to the contrary filed by the Appellants. 2. Rule 38 of the Rules provides that, despite s 60 of the Civil & Administrative Tribunal Act 2013(NSW) (the NCAT Act) the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if the amount claimed or in dispute in the proceedings is more than $30,000. 3. Rule 38A applies in respect of appeals lodged after 1 January 2016 and in the circumstances of this matter provides that the costs of appeal are to be determined in the same way that the first instance cost provisions were determined. That is to say, rule 38A provides that in the circumstances of this appeal, the Appeal Panel may award costs of the appeal in the absence of special circumstances warranting such an award if the amount claimed or in dispute is more than $30,000. 4. In Allen v Tricare (Hastings) Ltd [2017] NSWCATAP 25 the Appeal Panel considered the meaning of the words "in dispute" and determined that in the context of considering rule 38 it is necessary to consider the amount in dispute by reference to whether there is or was a realistic prospect that the wealth of the appealing party would be changed by more than $30,000 or, to put it another way, whether the right claimed by the appealing party prejudices that party by an amount in excess of $30,000 (see[57]). 5. The evidence disclosed that the Biowood attachment was an extensive addition to the building and we consider that the cost of replacing it would, as the Respondent submits, significantly exceed $30,000. 6. Accordingly, we are of the view that we may award costs even in the absence of special circumstances concerning the appeal. The Respondent was entirely successful in opposing the appeal and it is appropriate that the Respondents' costs of the appeal be paid by the Appellants. 7. Under s50 of the Civil and Administrative Tribunal Act 3013 NSW we determine that a hearing is not required and will order that a hearing on costs be dispensed with. The parties have been afforded an opportunity to make submissions as to whether a hearing may be dispensed with. 8. Accordingly, we make the following orders: 1. A hearing on costs is dispensed with. 2. The Appellants are to pay to the Respondent the Respondent's costs of the appeal on the ordinary basis as agreed or as assessed ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2020