Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ashton v Stevenson; Stevenson v Ashton (No 2) [2021] NSWCATAP 6 Hearing dates: On the papers Date of orders: 14 January 2021 Decision date: 14 January 2021 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President T Simon, Principal Member Decision: (1) A hearing in respect to the question of damages and in respect to the questions of costs is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). (2) In addition to the amount of $42,317.77 awarded by the Tribunal in the proceedings at first instance on 28 June 2018, Jacqueline Ashton is to pay Phillip Stevenson the sum of 8,833.50, immediately. (3) In respect of the proceedings HB 16/50587, the respondent Jacqueline Ashton is to pay the applicant Phillip Stevenson 50% of his costs, such costs to be as agreed or assessed on an ordinary basis. (4) In respect of the appeals AP 19/48919; AP 19/55511, AP 20/13241, Jacqueline Ashton is to pay Phillip Stevenson 50% of his costs, such costs to be as agreed or assessed on an ordinary basis. Catchwords: BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – major defect – assessment of damages COSTS – Award based on issues Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Cases Cited: Bostick Australia Pty Ltd v Liddiard (No 2) [2009] NSWSCA 304 Calderbank v Calderbank (1975) 3 All ER 333 Ashton v Stevenson; Stevenson v Ashton [2020] NSWCATAP 233 James Fordham v Dewsash Pty Ltd t/as SP & W Hobson [2014] NSWCACD 1 Miwa Pty Ltd v Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Stevenson v Ashton [2018] NSWCATCD 25 Thompson v Chapman [2016] NSWCATAP 6 Texts Cited: Nil Category: Principal judgment Parties: AP 19/48919 & AP 20/13241: Jacqueline Ashton (Appellant) Phillip Stevenson (Respondent) AP 19/55511: Phillip Stevenson (Appellant) Jacqueline Ashton (Respondent) Representation: AP 19/48919 & AP 20/13241: Counsel: M McMahon (Appellant) M Pesman (Respondent) Solicitors: Hughes & Taylor Solicitors (Appellant) Chambers Russell Lawyers (Respondent) AP 19/55511: Counsel: M Pesman (Appellant) M McMahon (Respondent) Solicitors: Chambers Russell Lawyer (Appellant) Hughes & Taylor Solicitors (Respondent) File Number(s): AP 19/48919; AP 19/55511, AP 20/13241 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of NSW Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 25 November 2019 Before: D Robertson, Senior Member File Number(s): HB 16/50587 REASONS FOR DECISION Introduction 1. On 9 November 2020 we published a decision and reasons in respect of the above appeals: Ashton v Stevenson; Stevenson v Ashton [2020] NSWCATAP 233. (Appeal Decision) 2. Three matters remain to be resolved. These are: 1. What amount should be awarded for damages in respect of the rectification costs for the rear terrace drainage defect for which the Appeal Panel found Ms Ashton liable? 2. What order for costs should be made in respect of the proceedings at first instance? 3. What order for costs should be made in respect of the appeal proceedings? 1. These reasons relate to our decision on these matters. They should be read in conjunction with the Appeal Decision which sets out the history of the proceedings. 2. In summary, we have decided to award Phillip Stevenson an additional sum of 8,833.50 for the rectification costs and for Jacqueline to pay 50% of Mr Stevenson's costs in each of the proceedings. Dispensing with a hearing 1. In the Appeal Decision we made directions for the filing of submissions in relation to the question of damages and in relation to the question of costs. Submissions were received on each of these questions from Mr Stevenson, the homeowner/successor in title. Mr Stevenson also sought to rely on further evidence. No submissions were received from Ms Ashton, the owner builder/predecessor in title. 2. We are satisfied Ms Ashton that notice of the directions contained in the Appeal Decision 3. Mr Stevenson consented to an order dispensing with a hearing under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). We are satisfied that a hearing is unnecessary, the parties being afforded an opportunity to make submissions and provide any further evidence and no objection having received from Ms Ashton. What amount should be awarded for damages in respect of the rectification costs for the rear terrace drainage defect for which the Appeal Panel found Ms Ashton liable? 1. The claim for damages concerns the estimated rectification costs for the rear terrace drainage defect, a matter dealt with by us in the Appeal Decision at [160]-[171]. 2. For the purpose of assessing damages in respect of this defect, Mr Stevenson sought to rely on further evidence being the building contract entered into between himself and Mirtillo Constructions Pty Ltd to carry out extensive building work (including the work required to rectify the rear terrace drainage defect) at the property for a lump sum price of $384,840.81. This contract had been entered into after the date the proceedings were determined at first instance. The contract was attached to a statement of Mr Stevenson dated 7 February 2020. 3. In reliance upon this evidence, Mr Stevenson claimed the following costs: 1. Rectify rear terrace drainage: $6,000.00 2. Preliminaries and establishment costs $1,200.00 3. Consequential and water damage costs $1,708.90 4. Total $8,908.90 1. To the amount of $8,908.90 Mr Stevenson said should be added "GST 10% margin and 5% contingency", making a total claim of $11,269.64. 2. Alternatively, in reliance on the evidence filed in the proceedings at first instance, Mr Stevenson said he should be awarded the sum of $8,833.50 being the assessment regionally provided by Mr McGill of $6,983.00 plus GST and a margin of 15%. 3. In the Appeal Decision we rejected an application by Mr Stevenson to rely on this new evidence. Our reasons for doing so are recorded at [232]-[238]. 4. However, that rejection was in the context of a broader application to adduce new evidence as to the cost said to be actually incurred in rectifying the defects found by the Tribunal at first instance for which an award of $42,317.77 orders made as well as claims for additional defects. 5. Consequently, we should briefly deal with the renewed application in the context of the limited purpose for which it is sought to be admitted, that is in assessing damages for rectification costs for the rear terrace drainage defect, a matter not separately dealt with by the Tribunal in the proceedings at first instance: see Stevenson v Ashton [2018] NSWCATCD 25 (Tribunal Decision) at [163] where the Tribunal assessed the combined damages for this defect and the claimed defect in the sewer surcharge overflow at $9,197.50. 6. In our view this new evidence should not be admitted for the limited purpose of assessing damages for the rear terrace drainage defect. Further, and in any event, the evidence provides little or no assistance in determining the reasonable rectification costs. Our reasons are as follows: 1. The appeal should be determined on the evidence of the proceedings at first instance as we have previously declined to deal with the appeal under s 80(3) of the NCAT Act. 2. The amount allowed in the contract for the rear terrace drainage defect rectification work is part of a lump sum contract. The amount provided for rectifying the defect is for a lump sum of $6,000 plus "preliminaries and establishment costs" and "consequential and water damage costs". 3. There is no explanation provided against each of these items about what work is involved and how each amount is calculated. There is no evidence, other than perhaps an inference that might be drawn from the entry into the contract, that the costs are reasonable. 4. There is no explanation about why a contingency of 5% should be added. 5. There is no explanation as to how the margin of 10% is calculated and there is no explanation about the interrelationship between the preliminaries and establishment costs and the builder's margin. 1. In short, the evidence provided is not sufficient to enable an assessment to be made of the reasonable rectification costs. Our comments concerning expert evidence in the Appeal Decision are pertinent. 2. On the other hand, we accept that the evidence of Mr Stevenson's expert, Mr McGill (to which Mr Stevenson refers in his submissions) establishes that the reasonable cost to rectify the rear terrace drainage defect is $8,833.50. 3. This evidence includes a Scott Schedule (AB 1 p 71 and following) filed by the parties and the report of Mr McGill (McGill report) dated 3 July 2017 (AB 2 p 499 and following). 4. In the McGill report, Mr McGill identifies the work required to rectify this defect at item H21, pp 544-545. Costings to rectify this item, together with items H17-H20, are then provided at p 587. The total cost of these items is $8,161.00 to which Mr McGill says should be added profit of 10%, 5% contingency and 10% for GST, making a total of $10,201.00. 5. However, in item 4 of the Scott Schedule (AB 1 p 77 and following) Mr McGill extracts from those amounts the costs associated with rectifying items H20 (sewer surcharge overflow defect) and H21 (rear terrace drainage defect) only. Those costs total $7,271.00. 6. Mr Stevenson submits that from the amount of $7,271.00 should be deducted the only cost item referable to the sewer surcharge overflow defect. This is an amount of $288.00 for the uPVC DWV pipe material, being the fourth item in the schedule to the McGill report at p 587 referred to above. 7. Consequently, Mr Stevenson submits he is entitled to recover an amount of "$6,983 before GST on overheads (being $7,271.00 less $288.00)". Mr Stevenson says this amount "correlates with the calculation of Mr McGill's estimate of $7,271.00 +15% margin and GST which the Tribunal at first instance accepted at [163] of its reasons. 8. As recorded in the Scott Schedule, the position of respondent's expert, Mr Dietrich), was that there was no defect. Alternatively, an amount of $594.63 only should be allowed. Mr Dietrich's report is found at AB p 787 and following. Item 10.4 (p 819) deals with this matter, costings being provided at pp 863 and 877-8. However, as is clear from his analysis at p 819 and following and the costings at p 877, the only amount being allowed is to "fit reflux valve to the GF waste drainage lines", that is to insert valves in the floor drainage to prevent reflux from the sewer system in the event of a surcharge. Otherwise, Mr Dietrich does not deal with the cost to rectify the rear terrace drainage defect. 9. Mr McGill said allowance should be made for a 15% margin and GST should be added to the total. On the other hand, Mr Dietrich allowed an amount of 20% for overheads and profit in his calculations (albeit for the limited items of the reflux valves) plus GST. As pointed out by Mr Stevenson in his submissions, the Tribunal accepted an amount of 15% should be allowed as a margin. 10. Having regard to the above evidence, there is no reason to depart from the Tribunal's assessment of the appropriate margin for this item and, in any event, we are satisfied it is a reasonable amount being the lesser percentage of the competing evidence. It follows that we are satisfied Mr Stevenson is entitled to an award of $8,833.50 calculated as follows: 1. Rectification costs $6,983.00 2. Margin at 15% $1,047.45 3. Sub Total $8,030.45 4. Add: GST $803.05 Total $8,833.50 What order for costs should be made in respect of the proceedings at first instance? 1. Mr Stevenson seeks an order that Ms Ashton pay his costs as agreed or assessed on an ordinary basis in respect of proceedings HB 16/50587. Mr Stevenson's submissions 1. Relying on Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [67] and [134] and James Fordham v Dewsash Pty Ltd t/as SP & W Hobson [2014] NSWCACD 1 at [6], Mr Stevenson says that ordinarily a successful party has a reasonable expectation of being awarded costs. 2. Mr Stevenson claims he was substantially successful and given his success it was reasonable for him to bring the original proceedings (and his appeal). Mr Stevenson says that the case was "fought the basis of a number of legal points, namely time limitation issues and the proper interpretation of section 3B of the [Home Building Act, 1989 (NSW) (HB Act)] and the effect of the provisions set out in section 18E of the [HB Act] in the first instance". 3. The Tribunal rejected Ms Ashton's claim that she was entitled to undertake rectification work. On this aspect, Mr Stevenson says her claim that a work order should be made was "futile". 4. Mr Stevenson referred to a number of offers that had been made during the course of the proceedings at first instance. However no suggestion was made that either party had obtained an outcome better than the offers actually made so as to invoke the principles found in Calderbank v Calderbank (1975) 3 All ER 333 (Calderbank). Consequently, there is no need to refer to these submissions in detail. 5. Of the alleged defects, Mr Stevenson said he was substantially successful, the Tribunal finding such defects established. In doing so, he acknowledged that the Tribunal found a number of defects were not major defects. However, he says that "it was clearly reasonable for him to pursue his claim". In this regard, he made a general submission that Ms Ashton acted unreasonably in refusing to resolve the proceedings and/or pursue litigation. Consideration 1. The appellant submits that r 38(2)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (Rules) applies because the amount claimed or in dispute is more than $30,000. We accept this rule applies to the proceedings at first instance. Similarly, it applies to the appeal proceedings: r 38A of the Rules. At first instance and on appeal, the amount claimed or in dispute in the appeals was more than $30,000. Consequently, there is a general discretion to award costs and special circumstances are not required to be established. 2. However, there is no absolute entitlement to a costs order in favour of a party who has obtained an award for compensation. In Thompson v Chapman [2016] NSWCATAP 6 the Appeal Panel said at [71]-[72]: 71 Where there is a general discretion for costs there is no absolute rule that, absent disentitling conduct, a successful party is to be compensated by the unsuccessful party nor is there any rule that a successful party might not be ordered to bear the costs of an unsuccessful party: see Oshlack v Richmond River Council per Gaudron and Gummo JJ at 88 and Kirby J at 121 – 123. 72 The factors to be considered in awarding costs in a particular case are not to be confined as to do so would constrain the general discretion. However it is clear from the authorities that factors that might influence whether the usual order for costs should apply and, if so, to what extent include: (1) Whether, by reason of the relative success of the parties on different issues and the time taken to determine those that an order for costs based on issues should be made: see for example Bostick Australia Pty Ltd v Liddiard (No 2) [2009] NSWSCA 304; and (2) Whether, by reason of the nature of the proceedings the usual rule should otherwise be displaced in whole or in part: see Oshlack v Richmond River Council per Gaudron and Gummo JJ at 41 – 44. 1. Some of the history of the proceedings at first instance is set out in the decision of the Tribunal at first instance at [8]-[13] and in the Appeal Decision in this appeal at [6]-[12]. 2. In short, Mr Stevenson originally commenced proceedings seeking compensation of $34,239 in respect of the allegedly leaking roof, a claim that was subsequently increased to $272,224.29 in respect of 7 categories of defects, some of which had subcategories or multiple items of complaint. Points of claim were originally filed in March 2017 and amended points of claim filed in July 2017 together with the Scott Schedule. 3. The hearing at first instance occupied three days, there being extensive expert evidence concerning the nature and extent of defects and extensive cross-examination across the range of topics covered by the experts. 4. At all times, Ms Ashton asserted that the proceedings were out of time because the defects about which complaint was made were not major defects within the meaning of the HB Act: see points of defence and amended points of defence AB 1 pp 63-65 and 69-70. 5. The factual issues included whether there were defects and, if so, whether the defects were waterproofing defects which cause or are likely to cause one of the prescribed consequences in s 18E(4)(a)(i)-(iii) of the HB Act. 6. Mr Stevenson had limited success, ultimately being entitled to an award of $42,317.77 as found by the Tribunal at first instance. This original award related to two items only, the balcony claim and the cladding claim (an outcome not altered on appeal). In addition, we have determined on appeal that the amount of amount of $8,833.50 should be made in favour of Mr Stevenson in respect of the rear terrace drainage defect. That is, Mr Stevenson had a total award made in his favour of $51,151.27. Costs of the proceedings at first instance should be determined in this context. 7. Otherwise, Mr Stevenson was unsuccessful in his claims which included the roof (the claim made in the original application), the windows and two of the three plumbing claims. This was because most of the defects were out of time as they were not major defects. 8. A review of the expert reports, the transcript and the reasons for decision reveal significant time was spent on each of the defects in dealing with the nature and extent of the problems and whether they constituted major defects within the meaning of the HB Act. As the Tribunal records in the decision at first instance, some of the defects were admitted by the experts for Ms Ashton, the dispute centring around whether those defects were major defects in respect waterproofing: see e.g. at [107] and [131] in relation to the roof defects and [149] in relation to the basin overflow plumbing issue. 9. Having regard to the limited success, we noted in the Appeal Decision that the submissions of the parties should deal with what costs order should be made "in light of the issues raised and the relative success of each party". 10. While no submissions were made by Ms Ashton, an order for costs is compensatory not punitive and it is necessary for us to exercise our discretion on the basis of the facts before us and determine what is the appropriate order. 11. In Bostick Australia Pty Ltd v Liddiard (No 2) [2009] NSWSCA 304, the Court of Appeal said at [34]: 38 The principles governing the making of an order as to costs so as to reflect the time taken in dealing with a particular issue in which the successful party in the proceedings or on the appeal did not succeed were reviewed by this Court in Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373. Those principles may be summarised as follows: • Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported). • In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24]. A similar approach is adopted on appeal. • If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 at [27]. • Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: State of New South Wales v Stanley [2007] NSWCA 330 at [18] per Hislop J (with whom Beazley and Tobias JJA agreed). • A separable issue can relate to "any disputed question of fact or law" before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34]. • Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James v Surf Road Nominees Pty Ltd (No 2), citing Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272. These principles were applied in City of Canada Bay Council v Bonaccorso Pty Ltd (No 3) [2008] NSWCA 57 at [22] and most recently in Turkmani v Visvalingham (No 2) [2009] NSWCA 279. 1. Applying these principles in the present case, there was always a substantial dispute about whether the defects were major defects, Ms Ashton asserting the proceedings were out of time. A resolution of this issue centred around the evidence concerning the nature and extent of defects and the consequences of those defects in terms of their effect on the habitability or structural integrity of the building. In this regard, it was not enough that Mr Stevenson prove the works were defective but also that the defects caused or were likely to cause the particular prescribed outcomes. 2. On any view, Mr Stevenson was only partially successful in relation to the factual disputes and whether particular defects were major defects. 3. In addition, he was unsuccessful in relation to when the works were completed and, ultimately, did not pursue any relief on appeal in connection with the Tribunal's conclusion about when the works were practically complete. 4. In a monetary sense, Mr Stevenson succeeded in obtaining an award for compensation of approximately $51,000 having asserted an entitlement to an award of more than $270,000. In this regard, it is difficult to see why the conduct of Ms Ashton in resisting the claim was unreasonable, particularly as she succeeded in showing that the number of defects were out of time, a matter which she had asserted since Mr Stevenson first commenced his proceedings. 5. In these circumstances, in our view it is not appropriate for Mr Stevenson to recover all of his cost of the proceedings at first instance. Rather, allowance should be made for those matters about which Mr Stevenson was unsuccessful. In making such allowance, we are mindful of Mr Stevenson's submission that the process of assessment should not be complicated by the need to dissect evidence and hearing time spent on each defect. Consequently, an order based on issues may be difficult to assess. Rather, an order based on a percentage of costs should be made to simplify the assessment process. 6. As pointed out in Bostik, apportionment in a mathematical sense is somewhat illusory. However, looking at the individual items in dispute and the relative success and time spent on each item, in our view Mr Stevenson is entitled to recover an amount of 50% of his costs in the proceedings at first instance. 7. We will make an order to this effect. What order for costs should be made in respect of the appeal proceedings? 1. Mr Stevenson seeks the following costs orders in respect of the appeal is: 1. Ms Ashton pay Mr Stevenson's costs as agreed or assessed on an ordinary basis in respect of proceedings AP 19/48919 and AP 19/55511; and 2. Ms Ashton pay Mr Stevenson's costs as agreed or assessed on an indemnity basis in respect of proceedings AP 20/13231 Submissions 1. In addition to his general submissions concerning the proceedings and the issues raised, Mr Stevenson raised a number of submissions specific to the issue of costs of the appeals. 2. Mr Stevenson submitted he was forced to file a cross-appeal to preserve his rights following Ms Ashton lodging her appeal against the original decision. 3. Mr Stevenson relies on two Calderbank offers. The first was said to have been made following his appeal to the Supreme Court in respect of the decision made by in the original appeal proceedings on 26 March 2019 (but before the first directions hearing in the Supreme Court). The offer was to the effect that Ms Ashton "walk away from all proceedings and the parties bear their own costs". The second was said to have been made following the Supreme Court decision to remit the proceedings to the Appeal Panel. This offer was to the effect that the parties accept the Tribunal's original determination in Mr Stevenson's favour and Ms Ashton pay Mr Stevenson cost of all proceedings. 4. We note at this point that the offers have not been placed in evidence before the Appeal Panel in the present application nor have we been provided with any evidence concerning what response, if any, was received from Ms Ashton in relation to those offers. 5. Mr Stevenson says: 1. that the "proceedings were, at every stage, strenuously fought by [Ms] Ashton", 2. that Ms Ashton denied any defects existed in the property, notwithstanding her experts' concessions in respect of a number of defects 3. that Ms Ashton acted unreasonably by continually refusing to resolve the proceedings and pursuing litigation "in respect of every matter in dispute"; and 4. Mr Stevenson was "successful in relation to the majority of issues in dispute and the central focus of the proceedings". 1. Consequently, it was inappropriate for the Tribunal to consider addressing the costs of certain aspects of the proceedings separately and certainly not in this case where "the issues are all closely interrelated and it would present a virtually impossible task to a costs [assessor] to be able to divide the cost incurred based on particular issues in dispute". Consideration 1. There were three separate appeals. An explanation of the proceeding numbers, when the appeals were filed and how those numbers changed on remittal from the Supreme Court is found in the Appeal Decision at [2]-[3] and [29]. 2. The first appeal was filed by Ms Ashton seeking to set aside the original award and dismissed Mr Stevenson's claim. It is appeal AP 18/31090, now appeal AP 20/14231. Ms Ashton challenged the findings that each of the balcony and cladding defects was a major defect and other evidentiary findings relevant to the Tribunal's conclusions on these issues. 3. The second appeal was filed by Mr Stevenson. It is appeal AP 18/32837, now appeal AP 19/55511. Mr Stevenson asked for orders that the original decision be set aside and that the Appeal Panel determine afresh the reasonable cost of rectifying the defects which he claimed existed. In his appeal, Mr Stevenson challenged the finding about when the works were complete, the findings about what constituted a major defect and particular findings concerning the roofing guttering defects, plumbing related defects, the amount allowed in respect of cladding, the defect in respect of the windows, allowances for preliminaries and the failure of the Tribunal to have regard to evidence in the form of quotations in determining the question of quantum. As necessary, leave to appeal was sought in respect of grounds that did not raise questions of law. 4. The third appeal, AP 19/48919, was filed by Ms Ashton. It relates to the costs order made by the Tribunal at first instance. 5. In relation to first appeal, Ms Ashton was wholly unsuccessful. 6. In relation to the second appeal, as with the proceedings at first instance, Mr Stevenson was only partly successful. 7. Mr Stevenson sought to challenge various monetary findings about the original award and evidence in connection with quantum and failed on these issues. He successfully challenged the Tribunal's dismissal of his claim in connection with the rear terrace drainage defect for which we made an additional award for $8,833.50, but was unsuccessful in his claims for other defects not allowed by the Tribunal at first instance. He initially sought to challenge the finding in relation to when the works were complete and ultimately abandoned this claim after the proceedings were remitted from the Supreme Court. 8. In relation to the third appeal, Ms Ashton was successful in having the costs order made by the Tribunal at first instance set aside. However, this matter did not involve any substantial time at the hearing of the appeal is by us. 9. We do not accept the submission that Ms Ashton acted unreasonably in respect of any of her appeals. She was successful in respect of the costs appeal and while unsuccessful in her appeal concerning the substantive decision of the Tribunal at first instance it could not be said that her position was hopeless or untenable. 10. In respect of Mr Stevenson's appeal, it was he who sought additional relief to that granted by the Tribunal at first instance. He also challenged various findings concerning when the works were complete and what were major defects. 11. We do not accept Ms Ashton forced Mr Stevenson to appeal. Ms Ashton's appeal was confined to the award made. Mr Stevenson's appeal went well beyond this compass. Ms Ashton could not be said to have acted unreasonably in resisting the additional claims brought by Mr Stevenson, most of which she successfully defended. 12. As to the Calderbank offers, it would seem these were relied upon for the purpose of obtaining a special order for costs (on an indemnity basis) in respect of Mr Stevenson's appeal. 13. In our view, these offers do not justify the making of a special order for costs in the present case. Our reasons are as follows: 1. We were not provided with a copy of the offers. 2. The failure to accept the offers could not be said to be unreasonable: Miwa Pty Ltd v Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344 at [8]-[16] and the principles set out therein. 3. In respect of the first offer: 1. The exact terms of the first offer are unclear and we do not have any evidence concerning what, if any, reply was provided to the offer. 2. At the time the offer was made, that is prior to the first directions hearing in the Supreme Court, it is not suggested in the material that has been provided to us that the issues for determination by the Supreme Court had then been defined nor have any submissions been provided as to why it was unreasonable for Ms Ashton not to accept an offer. 3. The offer was made prior to the first directions hearing in the Supreme Court and proposed each party walk away and bear their own costs. However, the position at that time was that Ms Ashton was successful in her appeal and entitled to costs of the appeal. In due course, she would have been entitled to costs of the proceedings at first instance. The effect of the offer, having regard to the (then) success of Ms Ashton in the original appeal proceedings, was to require Ms Ashton's total capitulation. In this sense there was no compromise: Miwa at [19] 1. In respect of the second offer, again it is difficult to see what compromise was being offered. In effect, this offer was that Ms Ashton walk away from the appeal proceedings and pay all the costs of the proceedings at first instance and on appeal. Further, having regard to the issues raised by Mr Stevenson and the ultimate outcome of his appeal, it could not be said the refusal to accept this offer was unreasonable. 2. In any event, the second offer has not been bettered in the sense that Mr Stevenson has not succeeded in obtaining an order Ms Ashton pay the whole of his costs of the proceedings at first instance. 1. Weighing all these matters, in our view an order should be made in favour of Mr Stevenson for some of his costs of the appeal. The order made should take account of the fact Mr Stevenson successfully defended Ms Ashton's substantive appeal, was unsuccessful in relation to Ms Ashton's costs appeal and that Mr Stevenson was only partly successful in relation to his own appeal. In addition, as with the costs order we have made in respect of the proceedings at first instance, the form of order should be such that the process of agreeing or assessing any cost payable is simplified so as to avoid any further substantial costs. 2. We accept that in the substantive appeals Mr Stevenson was required to deal with all factual matters relating to the award originally made by the Tribunal at first instance (which overlapped the issues raised in Ms Ashton's appeal) and in respect of the rear terrace drainage defect about which we determined that the Tribunal was in error. These costs Mr Stevenson should be entitled to recover. On the other hand, costs associated with the issue of when the works were completed and defect claims for which Mr Stevenson was unsuccessful are costs that should not be allowed. 3. On balance, we have reached the conclusion that Mr Stevenson should be entitled to an order that Ms Ashton pay him 50% of his costs of all appeal proceedings. In this way, the success Ms Ashton has had in relation to her costs appeal and the success she has had in resisting a large part of Mr Stevenson's appeal can be balanced against Mr Stevenson success in resisting Ms Ashton's appeal and the limited success he has had in relation to his appeal. In addition, the form of order will substantially simplify the assessment process and hopefully provide a basis upon which the parties can reach a resolution of what costs are payable without the need for complicated negotiations and/or a protracted assessment process which might require the categorisation of costs both in respect of proceedings and in respect of issues. Orders 1. The Appeal Panel makes the following orders: 1. A hearing in respect to the question of damages and in respect to the questions of costs is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. In addition to the amount of $42,317.77 awarded by the Tribunal in the proceedings at first instance on 28 June 2018, Jacqueline Ashton is to pay Phillip Stevenson the sum of 8,833.50, immediately. 3. In respect of the proceedings HB 16/50587, the respondent Jacqueline Ashton is to pay the applicant Phillip Stevenson 50% of his costs, such costs to be as agreed or assessed on an ordinary basis. 4. In respect of the appeals AP 19/48919; AP 19/55511, AP 20/13241, Jacqueline Ashton is to pay Phillip Stevenson 50% of his costs, such costs to be as agreed or assessed on an ordinary basis. ********** 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: 14 January 2021