Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Steele Associates Pty Ltd v Downie (No 2) [2021] NSWCATAP 300 Hearing dates: On the papers Date of orders: 5 October 2021 Decision date: 05 October 2021 Jurisdiction: Appeal Panel Before: T Simon, Principal Member J Lonsdale, 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 appellant is to pay the costs of the respondent in the appeal, as agreed or assessed. Catchwords: COSTS---Rule 38A Civil and Administrative Tribunal Rules 2014 Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2013 Home Building Act 1989 Cases Cited: Steele Associates Pty Ltd v Downie [2020] NSWCATAP 289 Texts Cited: None cited Category: Costs Parties: Steele Associates Pty Ltd (Appellant) Nicholas Downie (First Respondent) Claire Downie (Second Respondent) Representation: Counsel: W Marshall (Appellant) B DeBuse (Respondent) Solicitors: Watson & Watson Solicitor (Respondent) File Number(s): 2020/00371043 (AP 20/39773) Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 19 August 2020 Before: D Charles – Senior Member File Number(s): HB18/45686 and HB 19/13261 REASONS FOR DECISION Background 1. This decision relates to an application for costs made by the builder in relation to our earlier decision in Steele Associates Pty Ltd v Downie [2020] NSWCATAP 289. 2. The Appeal Panel proceedings involved a decision of the Tribunal in relation to a dispute under the Home Building Act 1989 (NSW). The appellant builder lodged an internal appeal against a decision made on 19 August 2020 in the Consumer and Commercial Division of the Tribunal. The Tribunal ordered the appellant to pay the respondent homeowners a sum of $308,275.44 in respect of a building claim and defects. Further orders were made in relation to retention monies. Leave to appeal was refused and the appeal was dismissed. 3. On dismissing the appeal, we provided a timetable for the filing and serving of submissions in relation to the application for costs by the homeowners, and for submissions to deal with whether or not the party consented to the issue of costs being determined on the papers. 4. The Appeal Panel only received submissions from the respondent homeowners. No submissions were received from the builder. 5. The homeowners consented to the issue of costs being decided on the papers. While no submissions on the issue were made by the appellant, we are 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. 6. Under s 60 (1) of the Civil and Administrative Tribunal Act 2013 (NCAT Act), , parties are bear their own costs. Under 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 whether "special circumstances" exist. 7. Rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) NCAT Rules states: 38 Costs in Consumer and Commercial Division of the Tribunal (1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (2) Despite section 60 of the 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— (a) the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under clause 10(2) of Schedule 4 to the Act in relation to the proceedings, or (b) the amount claimed or in dispute in the proceedings is more than $30,000. 1. Rule 38A of the NCAT Rules states: 38A Costs in internal appeals (1) This rule applies to an internal appeal lodged on or after 1 January 2016 if the provisions that applied to the determination of costs in the proceedings of the Tribunal at first instance (the first instance costs provisions) differed from those set out in section 60 of the Act because of the operation of— (a) enabling legislation, or (b) the Division Schedule for the Division of the Tribunal concerned, or (c) the procedural rules. (2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal. 1. Rule 38(2)(b) applies when the 'amount claimed or in dispute' is more than $30,000. This appeal involved an amount in dispute that was over $30,000 and the Tribunal is satisfied that rule 38 does apply to these proceedings and that there is no requirement for the Tribunal to find special circumstances to award costs. 2. The homeowners are seeking costs on the basis they were successful in the matter and costs should follow. The Appeal Panel is satisfied to award the homeowners their costs of the proceedings as agreed and assessed for the reasons set out below. The Tribunal is not satisfied that it should depart from the usual order as to costs. The Tribunal finds no legal or factual basis for rejecting costs and no submissions have been made by the appellant in that regard. 3. The orders are made for the appellant to pay the respondent costs as agreed or assessed. Order 1. The Appeal Panel 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 appellant is to pay the costs of the respondent in the appeal, as agreed or assessed. ********** 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: 05 October 2021