Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gaskell v Nazha (No 2) [2022] NSWCATAP 30 Hearing dates: On the papers Date of orders: 04 February 2022 Decision date: 04 February 2022 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member G Ellis SC, Senior Member Decision: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013, dispense with a hearing on the question of costs. 2. Order 1 made on 15 December 2021, namely that "The parties are to pay their own costs of the appeal", is confirmed. Catchwords: APPEAL - Costs - Appeal confined to a challenge to the costs order made at first instance Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: [2021] NSWCATAP 393 RBV Builders Pty Ltd v Chedra (No 2) Category: Costs Parties: Aaron Gaskell and Serena Bourke (Appellants) Sam Nazha (Respondent) Representation: Antunes Lawyers(Appellant) No appearance (Respondent) File Number(s): 2021/00251132 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 5 August 2021 Before: D Goldstein, Senior Member File Number(s): HB 18/12924 reasons for decision Introduction 1. The appellant sought and obtained a revision of the costs order made at first instance. On 15 December 2021 the Tribunal indicated its proposed order, namely that "The parties are to pay their own costs of the appeal". However, an opportunity was provided for evidence and submissions to be lodged if a different costs order was sought. 2. Brief submissions have been received for the appellant. No submissions were lodged in reply by the respondent. The issue raised is whether the costs of the appeal are to be determined by reference to the same statutory provision which applied at first instance. 3. For the reasons set out below, we have decided not to vary the costs order on the basis that the appeal did not relate to the amount claimed or in dispute but to the costs order made at first instance. Background 1. At first instance, the amount claimed or in dispute exceeded $30,000 and, on 8 June 2021, the appellants' obtained an order against the respondent in the sum of $221,344. 2. On 5 August 2021 the home owners obtained an order for costs against the respondent in the following terms: Sami Nazha must pay Aaron Gaskell and Serena Bourke's costs of and incidental to their case against him in HB 18/12924 on the ordinary basis less $79,899, such costs if not agreed to be assessed in accordance with the Legal Profession Uniform Law Application Act 2014. 1. In the appeal, only that costs order was challenged. The appeal was allowed, and the Tribunal's costs order was varied by deleting the words "less $79,899". Submissions 1. The appellant lodged submissions which may be summarised as contending that, since rule 38(2) of the Civil and Administrative Tribunal Rules 2014 applied at first instance, that rule should be applied to the costs of the appeal by reason of rule 38A. The appellant submitted that, as a result, s 60 of the Civil and Administrative Tribunal Act 2013 did not apply and it was not necessary for there to be special circumstances warranting an order for costs in respect of the costs of the appeal. No submissions were made in support of a contention that there were special circumstances warranting an order for costs of this appeal. 2. The respondent did not file any submissions in response to those of the appellant. Consideration 1. In our reasons for decision published on 13 December 2021, we referred to the Appeal Panel decision in RBV Builders v Chedra (No 2) [2021] NSWCATAP 393 (RBV) which considered whether costs put in dispute on an appeal are capable of being an "amount in dispute" for the purposes of rule 38. The Appeal Panel concluded that costs in dispute on an appeal do not constitute an "amount in dispute" for the purposes of rule 38. 2. It is not necessary to here set out rules 38 and 38A or section 60 as they are set out in RBV at [11] to [12]. We do not see any reason to depart from what was said in that decision at [24] to [42]. As a result, the costs of the appeal are governed by s 60 and there is nothing in either the material provided on appeal or in the submissions dated 21 December 2021 that provide support for a finding that this appeal involves special circumstances warranting an order for costs. 3. The parties were given an opportunity to make submissions in relation to whether the application for a different costs order could be determined on the papers. The appellant did not object to the making of an order dispensing with a hearing. The respondent provided no submissions in relation to the issue. In circumstances where the respondent did not attend the hearing of the appeal and both parties have had an opportunity to lodge submissions as to costs, the Tribunal is satisfied that there is no utility in a hearing on the question of the costs of the appeal. The application for a different costs order could appropriately be determined on the basis of the submissions made by the appellant. An order dispensing with a hearing has accordingly been made. Conclusion 1. For the reasons set out above, we make the following orders: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013, dispense with a hearing on the question of costs. 2. Order 1 made on 15 December 2021, namely that "The parties are to pay their own costs of the appeal", is confirmed. ********** 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. 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