Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rice v JR & SD Farmer t/a Urban Bespoke Homes; (No 2) [2021] NSWCATAP 2 Hearing dates: On the papers Date of orders: January 2021 Decision date: 05 January 2021 Jurisdiction: Appeal Panel Before: T. Simon, Principal Member P H Molony, Senior Member Decision: (1) An oral hearing on the issue of costs is dispensed with under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). (2) The application for costs and other orders is dismissed. (3) Each party is to bear their own costs of the appeal in accordance with s 60 (1) of the Civil and Administrative Tribunal Act 2013 (NSW). Catchwords: COSTS---Rule 38A Civil and Administrative Tribunal Rules 2014---Amount claimed or in dispute in appeal proceedings---Whether special circumstances must be established Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 Cases Cited: Mergerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Rice v JR & SD Farmer t/a Urban Bespoke Homes [2020] NSWCATAP 208 Category: Costs Parties: Spencer Rice (First Appellant) Elisha Rice (Second Appellant) JR & SD Farmer t/a Urban Bespoke Homes (Respondent) Representation: Solicitors: Whitehead Cooper Williams (Appellants) Respondents (Self-Represented) File Number(s): AP 19/57670 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 13 December 2019 Before: S F Smith File Number(s): HB19/09932 and HB 19/19180 REASONS FOR DECISION 1. This is an application for costs made by the appellant pursuant to a decision of the Appeal Panel in Rice v JR & SD Farmer t/a Urban Bespoke Homes [2020] NSWCATAP 208 2. The substantive Appeal Panel proceedings involved a decision of the Tribunal who had heard and determined a Home Building Act 1989 (NSW) dispute. 3. Relevantly, the builder (JR & SD Farmer t/a Urban Bespoke Homes) had taken proceedings against the homeowners (Rice) seeking outstanding amounts for the balance owing under a home building contract, variations and provisional amounts. The homeowners had also made a cross-application which was essentially a defence and denial of the builders' claims. Both applications were heard by the Tribunal on 28 October 2019 and on 13 December 2019 the Tribunal ordered that the homeowner pay the builder $26,083.35. 4. The homeowner appealed the decision and the Appeal Panel upheld the appeal on the basis that the Tribunal had erred in not allowing a statement from Mr Long who was a sub-contract carpenter who had worked on the extension and renovation for the builders. The Appeal Panel also determined that the amount owing has been incorrectly decided. 5. The Appeal Panel remitted the matter for re-determination by the Tribunal. Directions were also made to facilitate any costs application. The directions provided a timetable for the filing and serving of submissions, and for submissions to deal with whether or not the party consented to the issue of costs being determined on the papers. 6. The homeowner filed submissions on 20 October 2020 seeking costs and consenting to the matter being determined on the papers. Both parties filed and served written submissions. We have read and considered those submissions. 7. Both parties consented to the issue of costs being determined on the papers. The Tribunal is satisfied that the issue of costs can be adequately determined in the absence of the parties by considering their written submission and that the parties would be put to further unnecessary costs if they were to attend the hearing in person. Costs of the Appeal 1. Section 60 (1) of the NCAT Act requires that each party bear their own costs. However, pursuant to s 60 (2) of the NCAT Act, a cost order can be made if "special circumstances" are established. Section 60 (3) of the NCAT sets out the matters to which the Tribunal may have regard to in respect of the issue of "special circumstances". 2. "Special circumstances" are circumstances that are out of the ordinary, but not necessarily exceptional or extraordinary. The discretion to award costs must be exercised judicially having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: Mergerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]. 3. Rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) states that despite section 60 of the Act, the Tribunal may award costs in proceedings 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. The amount in dispute in this appeal was less than $30,000. Rule 38 and 38A of the NCAT Rules do not apply to the costs application and it is not disputed by the parties that the provisions of s 60 of the NCAT Act apply to the Appeal Panel proceedings. 4. The homeowner is seeking a fixed costs order for the costs of the original hearing and the Appeal. The homeowner makes submissions that the builder conducted the proceedings in a way that disadvantaged them by wrongly claiming money to which they were never entitled and disputing the admissibility of Mr Long' s evidence. The submit that the builder unreasonably prolonged both hearings by making claims that were never tenable and refusing reasonable offers to settle. 5. The homeowner also submits that while the amount claimed in the proceedings was less than $30,000, it was not substantially less ($26,083.35) and the Tribunal and Appeal Panel had granted the homeowners the right to be legally represented because of the complexity of the case and the evidence was voluminous. They submit that implicit in that granting of leave was the acknowledgement that the homeowners would be put to the expense of being legally represented and raised the potential for them to claim those costs were they successful and the builder has always alive to that prospect. Further, they submit that more than half the amount claimed by the builder was never claimable or even "arguable". 6. We have considered the parties submissions and we are not satisfied that there are special circumstances which warrant the making of a costs order. The fact we found grounds for granting an appeal does not mean that there are special circumstances under the provisions of s 60 to warrant costs to be granted. 7. Further, the granting of leave for legal representation does not in itself constitute special circumstances. Converse to the homeowner's submissions that the builder was aware of the prospect of potential costs, the homeowner was also on notice that in the event that they were successful in the Appeal they would only be awarded costs in special circumstances. 8. We do not accept that the documents from the builder were excessive. Many of the documents were records and receipts that were submitted to support the claim for outstanding monies. 9. The Appeal Panel has not found that any amounts claimed by the builder are "not claimable or even arguable". The primary reasons that the matter was remitted is because Mr Long's statement should have been allowed and that the awarding of the amounts were found by the Tribunal contrary to recent law. The appeal has been remitted the matter so that the outstanding amounts may be properly decided. 10. In relation to the purported offer of settlement, in circumstances where it has not ultimately been decided what, if anything, the builder may be owed, it cannot be submitted that an amount better than what they may receive has been offered. 11. We find that the homeowner has not established any special circumstances which warrant the making of a costs order and make the orders accordingly. ORDERS 1. The Tribunal makes the following orders: 1. An oral hearing on the issue of costs is dispensed with under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The application for costs and other orders is dismissed. 3. Each party is to bear their own costs of the appeal in accordance with s 60 (1) of the Civil and Administrative Tribunal Act 2013 (NSW). ********** 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: 07 January 2021