Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Goncalves v Bora Developments Pty Ltd (No 2) [2021] NSWCATAP 332 Hearing dates: On the papers Date of orders: 27 October 2021 Decision date: 27 October 2021 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President S Goodman SC, Senior Member Decision: (1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), a hearing of the costs issues in this appeal is dispensed with. (2) The appellant is to pay the respondent's costs of the appeal, as agreed or assessed. Catchwords: COSTS –- costs on internal appeals - amount in dispute exceeds $30,000 – costs follow the event – no disentitling circumstances Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 Cases Cited: Goncalves v Bora Developments Pty Ltd [2021] NSWCATAP 231 Goncalves v Bora Developments Pty Ltd; Bora Developments Pty Ltd v Goncalves [2020] NSWCATAP 112 Category: Principal judgment Parties: Bianca Goncalves (Appellant) Bora Developments Pty Ltd (Respondent) Representation: Counsel: M Klooster (Respondent) Solicitors: Appellant (Self-represented) Michael Atkinson & Associates (Respondent) File Number(s): 2020/371033 (AP20/38746) Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 19 August 2020 Before: Graham Ellis SC, Senior Member File Number(s): HB20/03581 and HB20/03584 REASONS FOR DECISION Introduction 1. On 4 August 2021, the Appeal Panel published its decision in Goncalves v Bora Developments Pty Ltd [2021] NSWCATAP 231, in which it refused leave to appeal and otherwise dismissed the appeal. 2. The orders made on that day included a timetable for submissions in the event that either party wished to make submissions as to costs of the appeal. As part of that timetable, the parties were directed to indicate whether they consented to the Appeal Panel determining the question of costs on the papers. 3. Subsequently, the Appeal Panel received written submissions from both parties. 4. Both parties consented to the Appeal Panel determining the question of costs on the papers. The Appeal Panel is satisfied, for the purposes of s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"), that the issues requiring determination can be adequately determined in the absence of the parties, by reference to their written submissions and other materials already before the Appeal Panel. Relevant principles 1. The relevant principles were set out in an earlier Appeal Panel decision between these parties, namely Goncalves v Bora Developments Pty Ltd; Bora Developments Pty Ltd v Goncalves [2020] NSWCATAP 112 at [16] – [21]: "16. The general rule in the Tribunal is that costs of an appeal are only allowed where special circumstances are found - see s 60 of the NCAT Act. Section 60, however, is in Pt 4 of the NCAT Act. Section 35, which is also in Pt 4, provides: Each of the provisions of this Part is subject to enabling legislation and the procedural rules. 17. Therefore, s 60 is subject to the procedural rules. 18. Rule 38A of the Civil and Administrative Tribunal Rules 2013 (NSW) (the NCAT Rules) provides with respect to internal appeals that: (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. 19. Rule 38 is a first instance cost provision which applies to claims in the Consumer and Commercial Division where, among other things, the amount in dispute exceed $30,000. Rule 38 says – (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. 20. In the present case the amount in dispute with respect to both the owner's and builder's appeals exceeded $30,000. This was also the case with respect to their initial claims before the Tribunal. 21. The usual rule which therefore applies is that costs follow the event…" Submissions 1. The respondent submitted that it was the successful party; that the usual rule should apply; and that there was no conduct on the part of the respondent that would displace the operation of the usual rule. The respondent sought an order that the appellant pay its costs on the ordinary basis as agreed or assessed. 2. The appellant's submissions were principally directed at the correctness of the Appeal Panel's decision in Goncalves v Bora Developments Pty Ltd [2021] NSWCATAP 231. To the extent that her submissions related to costs they may be summarised as an objection to payment of costs in circumstances where the Appeal Panel, in her submission, erred. The appellant did not suggest that the usual rule did not apply or that the respondent had engaged in any disentitling conduct. Consideration 1. The appellant's submission is founded on the premise that the Appeal Panel erred. That premise is false – for the purpose of determining costs, the decision of the Appeal Panel is presumed to be correct. 2. The amount in dispute on the present appeal exceeded $30,000. Thus, the application of the usual rule would produce an order that the appellant pay the respondent's costs. This follows from the application of rules 38 and 38A of the Civil and Administrative Tribunal Rules and s 35 of the NCAT Act. 3. The Appeal Panel sees no reason to depart from the usual rule. Orders 1. The orders of the Appeal Panel are: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), a hearing of the costs issues in this appeal is dispensed with. 2. The appellant is to pay the respondent's costs of 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: 27 October 2021