Georges v Ozz Projects (Aust) Pty Ltd [2021] NSWCATCD 104

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Georges v Ozz Projects (Aust) Pty Ltd [2021] NSWCATCD 104 Hearing dates: 3 March 2021 Date of orders: 23 July 2021 Decision date: 01 October 2021 Jurisdiction: Consumer and Commercial Division Before: N Vrabac, Senior Member Decision: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 NSW, the Tribunal dispenses with a hearing, the issues the subject of the application may be determined on the basis of the papers lodged with the Tribunal by the parties in accordance with the Tribunal's orders and directions. 2. The respondent Ozz Projects (AUST) Pty Ltd is to pay 60% of the applicant's costs of an as agreed or assessed. 3. The respondent's application for costs is dismissed. Catchwords: COSTS - Civil and Administrative Tribunal Act 2013 (NSW) Legislation Cited: Nil Cases Cited: Bostik Australia Pty Ltd v Liddiard (NO 2) [2009] NSWCA 304 Thompson v Chapman [2016] NSWCATAP 6 Owners Corporation Strata Plan 70762 v L & C Platt Constructions Pty Ltd [2014] NSWCATCD 8 Texts Cited: Nil Category: Costs Parties: Peter Georges (Applicant) Ozz Projects (AUST) Pty Ltd (Respondent) Representation: Counsel: M Marshall (Applicant)

Solicitors: Finn Roache Lawyers (Applicant) Celtic Legal (Respondent) File Number(s): HB 20/37272 Publication restriction: Nil

REASONS FOR DECISION

Background 1. The background to the proceedings from which this cost application arises was set out in some detail in the decision of the Tribunal made on 23 July 2021. A brief summary appears below to give context to the costs application. 2. On or about 5 June 2018 the applicant ("Owner") and the respondent ("Builder') entered into written agreement for the provision of building and renovations work to be supplied by the Builder to the Owner. 3. The agreement was in the sum of $155,000.00. 4. On or about 7 January 2019, the Builder notified the Owner that he was unable to complete the building works. The Builder was last on the building site on 4 March 2019. 5. The Builder stated the building works were completed pursuant to the contract, accept for the second mid-landing. The Builder contracted to build an inclinator and landings from the Owner's house, down the hill, to his boat house near the water. 6. A dispute arose as to whether the Builder should have built the second mid-landing. 7. On 27 August 2020 the Owner commenced proceedings in this matter. 8. The Owners's claim for damages against the Builder was particularised as follows: $38,445.00 for failure to complete the second mid-landing; $3,000 additional scaffolding costs, and $43,000.86 in liquidated damages pursuant to the agreement. 1. The Builder filed a cross claim, HB 20/19203, which has not been determined to date. The Builder's claim against the Owner was initially a debt recovery in the Local Court in the sum of approximately $17,000.00. The Local Court proceedings were transferred to NCAT. The Builders claim was amended at NCAT as follows: $14,123.24 unpaid monies under contract $2,943.60 unpaid invoice, and $119,340.43 delay payment, loss to be proven under contract 1. On 13 August 2020 the Builder was directed to file and serve his evidence in reply in the Owner's claim by 5 November 2020. The matter was listed for hearing on 20 November 2021. The Builder applied for an adjournment because he did not have his Programing Expert's, Mr Grieve's report ready on time. The matter was adjourned over the Owner's objections. 2. The Builder filed and served his Expert's Report of Mr Grieve on 1 March 2021, four months after the hearing date 5 November 2020. The hearing was set down on 3 March 2021. 3. On 23 July 2021 the Owner's application was decided and the following orders were made: The respondent is to pay applicant the sum of $4,000.00 on or before 13 August 2021. Each party to pay their own costs of the proceedings 1. The cost order made was made contingent on either party seeking a different cost order within 14 days from the date of the decision. 2. The Owner seeks an order that his costs be paid by the Builder. The Builder sought an order that the Owner pay his costs. 3. Written submissions were filed and served by the parties in accordance with the directions made on 23 July 2021.