X-Build Construction Services Pty Ltd v O’Rourke (No. 2) [2021] NSWCATAP 45

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: X-Build Construction Services Pty Ltd v O'Rourke (No. 2) [2021] NSWCATAP 45 Hearing dates: 18 January 2021 Date of orders: 26 February 2021 Decision date: 26 February 2021 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member J McAteer, Senior Member Decision: In AP 20/20383: 1. Each party is to pay its, his or her own costs of the appeal. In AP 20/41499: 1. Appeal allowed. 2. The decision of the Tribunal of 3 September 2020 as to costs is set aside. 3. In lieu thereof, order the appellant to pay the respondents' costs of the proceedings at first instance (in HB 18/41504 and HB 18/49409) as agreed or assessed. 4. Each party is to pay its or their own costs of the appeal up to 26 November 2020. 5. The appellant is to pay the respondents' costs of the appeal incurred subsequent to 26 November 2020 on the ordinary basis. Catchwords: APPEALS – procedural fairness – hearing rule – decision on costs made at time appellant stayed from filing and serving submissions – denial of procedural fairness COSTS – party/party – rr 38 and 38A of the Civil and Administrative Tribunal Rules 2014 – special circumstances – Calderbank offer may be a special circumstance Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 60, 81 Civil and Administrative Tribunal Rules 2014, rr 38, 38A Cases Cited: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152 Calderbank v Calderbank [1976] Fam 93 Ferguson v Hyndman [2006] NSWSC 538 King Network Group Pty Ltd v Club of the Clubs Pty Ltd (No 2) [2009] NSWCA 204 Messiter v Hutchinson (1987) 10 NSWLR 525 Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622 Rekrut and Scott v Champion Homes Sales Pty Ltd; Champion Homes Sales Pty Ltd v Rekrut and Scott [2018] NSWCATAP 97 Stead v State Government Insurance Commission [1986] 161 CLR 141 Vella v Mir (No 3) [2020] NSWCATAP 17 Texts Cited: Nil Category: Costs Parties: X-Build Construction Services Pty Ltd (Appellant) Aaron O'Rourke (First Respondent) Sally O'Rourke (Second Respondent) Representation: Counsel: C Lambert (Appellant)