Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Reid & Robinson Builders Pty Ltd trading as John Robinson Elite Constructions v Cleal [2022] NSWCATAP 137 Hearing dates: 20 August 2021 Date of orders: 02 May 2022 Decision date: 02 May 2022 Jurisdiction: Appeal Panel Before: I R Coleman SC ADCJ, Principal Member J S Currie, Senior Member Decision: (1) That, pursuant to s 50(2) of the Civil and Administrative Act 2013 the Respondents' application for costs be determined without an oral hearing. (2) That the Appellant pay the Respondent's costs of the appeal as agreed or assessed on a party and party basis. Catchwords: COSTS — Party/Party — Appeals — where Appellant unsuccessfully challenged interlocutory order transferring proceedings to District Court — whether s 60 of the Civil and Administrative Tribunal Act 2013 or Rule 38A of the Civil and Administrative Tribunal Rules 2014 governed application for costs of the appeal — held that Rule 38A applied — unsuccessful Appellant ordered to pay Respondent's costs Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Interpretation Act 1987 (NSW) Limitation Act 1987 (NSW) Cases Cited: Allen v Tricare (Hastings) Ltd [2017] NSWCATAP 25 Amaca Pty Ltd v Cremer [2006] NSWCA 164, (2006) 66 NSWLR 400 Avopiling Pty Limited v Bosevski [2018] NSWCA 219 B & M Mitchell Pty Limited v Mikell Investments Pty Limited & Divlist Pty Limited t/as Contemporary Homes [2018] NSWCATAP 63 Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 BHP Billiton Iron Ore Pty Limited v National Competition Council (No. 2) [2007] FCA 557 Bostik Australia Pty Limited v Liddiard (No. 2) [2009] NSWCA 68 Bull v Attorney-General (NSW) (1913) 17 CLR 370 Cheney v Spooner [1929] HCA 12; (1929) 41 CLR 532 Clarence v Electricity Commission of New South Wales (1990) 20 NSWLR 1 Firebird Global Master Fund II Ltd v Republic of Nauru (No. 2) [2015] HCA 15 IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267 Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178 Latoudis v Casey (1990) HCA 59, (1991) 70 CLR 535 LMA Contractors Limited v Changizi [2017] NSWCATAP 145 Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 Oshlack v Richmond River Council (1998) 193 CLR 72 R v L (1994) 49 FCR 534 Singh v Fobupu Pty Ltd [2018] NSWCATAP 127 Singh v Khan [2019] NSWCATAP 45 Thompson v Chapman [2016] NSWCATAP 6 Texts Cited: Dennis Pearce, Statutory Interpretation in Australia (9th ed, 2019) Category: Principal judgment Parties: Reid & Robinson Builders Pty Ltd trading as John Robinson Elite Constructions (Appellant) Wendy Kay Cleal (First Respondent) Wayne Leslie Cleal (Second Respondent) Representation: Solicitors: Nolan Commercial Law Practice (Appellant) Tranter Lawyers (Respondent) File Number(s): 2021/00173913 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 14 May 2021 Before: K. Ross, Senior Member File Number(s): HB 20/35814 REASONS FOR DECISION 1. On the 9 November 2021, the Appeal Panel refused to extend time for the Appellant, Reid & Robinson Builders Pty Limited t/as John Robinson Elite Constructions ("the Builder") to appeal against a decision made by the Tribunal on 14 May 2021, which refused to grant leave to appeal and dismissed the Builder's appeal. 2. The Appeal Panel made directions for the filing of submissions with respect to costs. The Respondents to the appeal, Wendy Kaye Cleal and Wayne Leslie Cleal ("the Homeowners"), filed submissions in support of their application for an order for costs of the appeal on 15 November 2021. The Builder filed submissions in response to those submissions on the 23 November 2021 opposing the Homeowners' claim. 3. Order 6 of the Orders of the Appeal Panel of 9 November 2021 provided that: "If no objection is made to the application for costs being determined without a hearing, then, pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013, any disputed application for costs shall be determined on the written submissions of the parties without an oral hearing." 1. Appropriately in our view, neither party sought an oral hearing of the Homeowners' costs claim. Provisions governing the Homeowners' application 1. The Homeowners submitted that the provisions of Rule 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) ("the Rules") governed the present application. The Builder submitted that the application was governed by the provisions of s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the CAT Act"). 2. Regulation 38A(2) of the Rules provides that: "Despite s 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance cost provisions when deciding whether to award costs in relation to the internal appeal." 1. The "first instance cost provisions" are identified in Rule 38 of the Rules. Rule 38 applies to "proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal" (Regulation 38(1)). It is not in doubt that the appeal arose from a determination of the Consumer and Commercial Division of the Tribunal. 2. Rule 38(2)(b) provides that: "despite s 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 … [relevantly for present purposes] the amount claimed or in dispute in the proceedings is more than $30,000". 1. Conversely, s 60(2) of the CAT Act provides that the Tribunal "may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs". Section 60(3) of the CAT Act identifies 6 specific, and one general matter, to which regard may be had "in determining whether there are special circumstances warranting an award of costs". It is apparent that an applicant for costs bears a different onus when the application is governed by Rule 38 and/or Rule 38A than if such application is governed by the provisions of s 60 of the CAT Act. 2. The Homeowners submitted (paragraph 4) in relation to the applicable cost provisions that the amount claimed by them at first instance "exceeds $288,000", as the Homeowners' Home Building Application dated 21 August 2020 was submitted to establish. The Homeowners further submitted that "there has been no admission by the Appellant [Builder] with respect to any part of the Respondents' claim such that the whole of the amount claimed remains in dispute." It was further submitted that the Homeowners' claims for damages pursuant to the Australian Consumer Law 2010 (Cth) prima facie exceed $30,000. It was thus submitted that "consequently, the Appeal Panel has an unfettered power to award costs and there is no requirement for the Respondents to demonstrate any special circumstances warranting such an award". 3. The Builder submitted (paragraph 9) that the "starting point" for any consideration as to costs is s 60 of the CAT Act. The Builder submitted (paragraph 10) that a "proper reading" of s 60 of the CAT Act "clearly distils the following principles". In four following subparagraphs a number of propositions were advanced in support of that contention. It was submitted (paragraph 11), without more, that "in the absence of special circumstances there is no power for an award of costs of the appeal". 4. Relevantly for present purposes, the Builder's submissions with respect to the applicable cost provisions concluded (paragraph 12): "A further issue for consideration is that the Respondents to the appeal have claimed their losses to be in an amount of $288,803.59." 1. Although the submissions of the parties do not engage with them in detail, or, to the extent that they do, are of limited assistance, we perceive that two issues require determination: 1. whether, as the Builder contends, for the purposes of Rule 38, the "proceedings" were the Homeowners' interlocutory application for the transfer of the proceedings to the District Court, or, as the Homeowners contend, the whole of the proceedings, of which their interlocutory application formed part; and 2. if the Homeowners' contention finds favour, whether the amount claimed or dispute in the proceedings is more than $30,000. Whether the Homeowners' interlocutory application constituted "proceedings" which could enliven Rule 38 1. In Allen v Tricare (Hastings) Ltd [2017] NSWCATAP 25, (Tricare) the Appeal Panel considered, at [32-41], the meaning of the term "proceedings" in Rule 38. The Appeal Panel noted [33] that, although used extensively in the CAT Act, "proceedings" is not defined in either the CAT Act or the Interpretation Act 1987 (NSW). 2. The Appeal Panel accepted, at [33] that "proceedings" is a word of "great generality" and "takes its precise meaning from the context in which it appears", in reliance upon Clarence v Electricity Commission of New South Wales (1990) 20 NSWLR 1 at 4, and Amaca Pty Ltd v Cremer [2006] NSWCA 164, (2006) 66 NSWLR 400 at [75]), and "ordinarily refers to the "method permitted by law for moving a court or judicial officer to some authorised act" or "any application by a suitor to a court in its civil jurisdiction for its intervention or action", as held in Cheney v Spooner [1929] HCA 12; (1929) 41 CLR 532 at (536-537 and 538-539)). 3. For the reasons which it earlier recorded, the Appeal Panel in Tricare held, at [41] that each of the five appeals before it was to be treated as a "separate proceeding" for the purposes of Rule 38. In view of its focus on the appeals when determining the applicability of Rule 38, and thus Rule 38A, we do not understand the Appeal Panel's decision in that case to be inconsistent with finding that the Homeowners' application at first instance to transfer the substantive proceedings from the Tribunal to the District Court constituted "proceedings" which were capable of enlivening Rule 38. 4. In Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, (Knight) a case concerning the ambit of the powers of the Supreme Court of Queensland to make costs orders against non-parties, Gaudron J said, at [2] that it was "contrary to long-established principle that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of that grant", and that, other than for a "qualification" to which her Honour later referred, "a grant of power should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary. Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle". The "qualification" to which her Honour referred was that the "necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily to capriciously or to work oppression or abuse". 5. As was suggested by the Appeal Panel in Singh v Fobupu Pty Ltd [2018] NSWCATAP 127, at [24], the terms of Rule 38 and Rule 38A are not constrained by reference to whether the determination in question was interlocutory or substantive or final. The distinction is somewhat artificial in this case, as the relief sought by the Builder at first instance, and on appeal, if granted, would have resulted in the dismissal of the Homeowners' damages claim. 6. The term "proceedings" in Rule 38 arguably "offer(s) more than one construction" (Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214, at [19]). In those circumstances, recourse to the provisions of s 33 of the Limitation Act 1987 (NSW) is appropriate. 7. Section 33 of the Interpretation Act 1987 (NSW) provides that: "In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object". 1. The interpretation of Rule 38, which is determinative of the application of Rule 38A is governed by s 33 of the Limitation Act as a "statutory rule". 2. Section 33 of the Interpretation Act requires the purpose or object of the statutory provision to be taken into account, even if the meaning of the words, interpreted in the context of the rest of the statutory provision, is clear. When the purpose or object is taken into account, an alternative interpretation of the words may become apparent. If one interpretation does not promote the purpose or object the provision, and another does, the latter must be adopted (Pearce, 9th edn., page 48). We are satisfied that the purpose or object of Rule 38, and thus Rule 38A, was to provide a costs regime for proceedings in the Consumer and Commercial Division of the Tribunal which more closely resembled the costs regime applicable to proceedings in courts pursuant to the Civil Procedure Rules 2005 (NSW), and did not require an applicant for costs to establish "special circumstances", as applies to proceedings in other divisions of the Tribunal pursuant to s 60 of the CAT Act. 3. It is not difficult to envisage successful parties to proceedings securing a costs order if Rule 38 applies, who would not achieve that outcome if the more onerous provisions of s 60 of the CAT Act applied. In circumstances where the legislature has not seen fit to otherwise qualify the operation of Rule 38, it is difficult to reconcile such an interpretation with s 33 of the Limitation Act. The broad interpretation of "proceedings" advanced by the Homeowners is considered to promote the purpose or object underlying Rule 38, and is to be preferred to the interpretation advanced by the Builder which would not. 4. The principles of interpretation governing "remedial" or "beneficial" provisions are considered to support our interpretation of "proceedings" on the facts of this case, and to involve no inconsistency with the provisions of s 33 of the Limitation Act. Rule 38 can be considered a remedial provision as it confers a benefit on a successful party to proceedings in the Consumer and Commercial Division of the Tribunal which is not enjoyed by successful parties to proceedings in other divisions of the Tribunal and "thereby remedies some injustice" (Re McComb [1999] 3 VR 485, at [490]). The "injustice" sought to be addressed by Rule 38 is tolerably clear: a successful party in consumer or commercial proceedings ought not be denied a costs order by the operation of the more onerous provisions of s 60 of the CAT Act. 5. To the extent that ambiguity exists with respect to the interpretation of Rule 38, we consider that it should be interpreted "beneficially", which means "not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow" (Bull v Attorney-General (NSW) (1913) 17 CLR 370). In IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, at [11], Brennan CJ and McHugh J cautioned that "Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural". 1. To interpret "proceedings" in Rule 38 narrowly would almost certainly confine the operation of the rule to costs applications following the making of final orders, and to encourage interlocutory applications which, although unmeritorious, would not enliven s 60 of the CAT Act. It is difficult to accept that the legislature intended to constrain the operation of Rule 38 in the absence of words evidencing that intention, or that such an interpretation would promote the apparent purpose or object of Rule 38. 2. For the reasons recorded above, we are satisfied that the Homeowners' application arises in "proceedings" which are potentially governed by the provisions of Rule 38, and thereby, Rule 38A. In relying on s 33 of the Interpretation Act, we are conscious of the fact that the section "is not a warrant for redrafting legislation nearer to an assumed desire of the legislature" (R v L (1994) 49 FCR 534, at [538]). We are also satisfied that our interpretation of "proceedings" for the purposes of Rule 38 does not involve an impermissibly "strained construction" of the words of the Rule (Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292, at [302]). It is thus necessary to consider whether the amount claimed or in dispute in the proceedings was more than $30,000. Whether the amount claimed or in dispute in the proceedings was more than $30,000 1. In LMA Contractors Limited v Changizi [2017] NSWCATAP 145 at [13] ("LMA Contractors"), the Appeal Panel recorded that the proceedings at first instance involved competing claims, one in the sum of $39,900, the other $93,944.94. The Appeal Panel found that: "14 By reason of the matters stated in the preceding paragraph, Rule 38 applied to the proceedings at first instance. The provisions of Rule 38 are different to the content of s 60 of the Act. By reason of this fact pursuant to Rule 38A(2) we must apply Rule 38 when deciding whether to award costs in relation to this appeal." 1. In B & M Mitchell Pty Limited v Mikell Investments Pty Limited & Divlist Pty Limited t/as Contemporary Homes [2018] NSWCATAP 63 ("Mitchell") at [4] the Appeal Panel recorded that the first instance application resulted in an order that the homeowner was to pay the builder the sum of $35,989.11. The homeowner's appeal against that order was dismissed. The Appeal Panel recorded at [8] that "Here, the amount claimed (and awarded) was more than $30,000 and accordingly, this Appeal Panel is able to award costs even in the absence of special circumstances". 2. In Singh v Khan [2019] NSWCATAP 45, the Appeal Panel was concerned with a costs application arising against an unsuccessful applicant for leave to appeal against an interlocutory decision. The Appeal Panel referred to the decision of the Appeal Panel in Singh v Fobupu Pty Ltd [2018] NSWCATAP 127 in which it was accepted, at [24] that there was: "no dichotomy between those parts of the proceedings which relate to interlocutory applications and orders which might be made during the course of proceedings and those parts of the proceedings that might finally dispose of a party's rights. If the legislature had intended that power to award costs in the proceedings was limited to those circumstances where final orders are made, it would have said so. There is no logical reason to limit the power given to the Tribunal under Rule 38 in the manner suggested by the applicant." 1. In Singh v Khan, at [10] it was held that Rule 38 was not applicable, as "there is no monetary value attached to an order uplifting a stay". It is clearly arguable that there is no monetary value attached to an order transferring proceedings from the Tribunal to the District Court, as the order at first instance which gave rise to the appeal in this matter did. 2. The Appeal Panel in Singh v Khan referred to the decision of the Appeal Panel in Tricare at [57], in which it was considered that "The determinative factor (in applying Rule 38A) is the amount in dispute in each appeal, not the amount in dispute in the proceedings at first instance". 1. The Appeal Panel in Singh v Khan said that this passage "makes it clear that, in order that Rule 38(2)(b) apply to appeal proceedings it is necessary that the amount in dispute in the appeal itself exceed $30,000. We note that it would be an unusual case where an interlocutory order the subject of an interlocutory appeal could be shown to be likely to affect the wealth of the appealing party by more than $30,000". 1. For the reasons which it recorded, the Appeal Panel in Singh v Khan, at [14] found it unnecessary to seek to resolve the question of whether Rule 38(2)(b) was applicable or to "reconcile" the decision in Singh v Fobupu with the decision in Tricare. 2. In Tricare, at [43-46] the Appeal Panel considered whether the "amount claimed" in any of the appeals was more than $30,000. As its reasons made clear, the Appeal Panel's focus was the orders sought by the parties to the appeals, none of which was held to "involve in substance a claim that the Appeal Panel should make orders for payment of more than $30,000 in their favour" [45]. If the Builder's appeal in this case had succeeded, there is no doubt that the Homeowners would have lost the opportunity to pursue a claim, or claims worth well in excess of $30,000. 3. The Appeal Panel in Tricare then considered [48-69] whether the "amount in dispute" in any of the appeals was more than $30,000. It was accepted [48] that, for the purposes of Rule 38, "amounts may be in dispute even if they are not the subject of a specific claim for an order for payment". In this case, there was no specific claim for an order for payment in the proceedings which gave rise to the appeal. We respectfully agree with the Appeal Panel in Tricare that this did not mean that Rule 38 could not be enlivened. 4. Relevantly for present purposes, the Appeal Panel in Tricare recorded, at [68] that "the only claims made in the proceedings at first instance concerned termination and possession orders", and that no resident sought "compensation orders". The Appeal panel had earlier recorded, at [35] that the asserted value of factors which arguably "should be seen as equivalent to the value of the right of possession" fell below $30,000. The Homeowners in the present case were seeking monetary relief well in excess of $30,000 in the substantive proceedings, which claim the Builder was seeking to have dismissed in the proceedings at first instance. 5. The Appeal Panel in Tricare considered the meaning of the term "issue" in s 101(2)(r)(i) of the Supreme Court Act 1970 (NSW), and its Macquarie Dictionary definition- "a point in question or dispute, as between contending parties in an action at law" [51-54]. The Appeal Panel referred [56] to the principles governing the requirements of s 101(2)(r) of the Supreme Court Act which emerge from Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267. 6. Relevantly for present purposes, and recognising that the assistance gained from the judgment of the Court of Appeal with respect to the section was held to be "limited" in Tricare, at [52] and omitting citations, the principles there discussed establish that: 1. "the determinative factor is not the amount of the judgment, nor the amount of the original claim, but the value of the matter at issue in the appeal; 2. the phrase "at issue" must be construed as meaning "truly at issue or, inversely, not unrealistically at issue"; and 3. a "matter at issue" involves a "realistic prospect that the "appeal would change the wealth of the appealing party by more than $100,000, it being the realistic worth of the claim that must exceed $100,000, rather than the property the subject of the claim". 1. As is not in doubt, and as the submissions of the Builder in the substantive appeal and in the submission quoted earlier in these reasons acknowledged, the amount in dispute in the proceedings at first instance was substantially in excess of $30,000. At first instance, and on appeal, the Builder sought that its appeal be allowed and that the Homeowners' damages claim be dismissed. Had that transpired, a claim for an amount significantly in excess of $30,000 would have been dismissed, and the "wealth" of the Builder changed to that extent. As the written and oral submissions in the appeal confirm, albeit unsuccessfully, the Builder argued "realistically", thoroughly and cogently in support of its contention that the Homeowners' damages claims were statute barred and should thus be dismissed. These matters were "truly in issue" at first instance and on appeal, and represented "the value of the matter" in issue on each of those occasions. In our view, it would be unrealistic in the circumstances we have identified, and contrary to persuasive authority, to decline to find that the amount in dispute in the appeal did not exceed $30,000. 2. For the foregoing reasons, we are satisfied that the present application is governed by the provisions of Rule 38A. On the facts of this case, we would make the same decision whether what was "in dispute" at first instance or on appeal was determinative of that issue. As our consideration of the decision of the Appeal Panel in Tricare is suggested to confirm, this issue is not without complexity, and, ultimately, each case turns on its own facts. We do not consider that our decision is in conflict with the decision in Tricare, which involved materially different facts to the present case. Consideration of the application 1. In support of their application, the Homeowners submitted (paragraph 7) that the Builder had "failed on all issues" raised by it in the appeal, such that an order for costs should be made in their favour. The Homeowners submitted (paragraph 8) that, to the extent that it may be suggested that the Builder succeeded on one of the issues raised, that being whether, if the appeal was not lodged in time, time would be extended, the Appeal Panel would reject that contention. Two reasons were advanced in support of that submission. The first was, correctly, that the Appeal Panel did not refuse the extension of leave without first considering whether the Builder's challenges had merit, which they were found to lack. The Second factor was that, even if the Builder had been successful on that limited issue, that was "not a clearly dominant or separable issue that would give rise to any consideration to differentiate between those particular issues on which the appellant was successful and those on which it failed." In those circumstances, the Homeowners submitted that, having been entirely, or overwhelmingly, successful, they were entitled to their costs. 2. Not surprisingly, having asserted that the application was governed by s 60 of the CAT Act, the Builder's submissions do not engage with any matters of relevance pursuant to Rule 38, or Rule 38A. The substance of the Builder's submissions were directed to its application that the costs be "in the cause". In support of that application, the Builder submitted (paragraph 3) that each of the arguments advanced by it in the appeal "were reasonably open to it and appropriate". We accept that proposition. 3. The Builder further submitted (paragraph 4) that a "central element of the Appellant's argument before the Appeal Panel was whether the Respondents' claim in contract at common law was statute barred pursuant to the provisions of the Limitation Act 1969 (NSW). To date, this issue still awaits determination". 1. It was thus submitted that fact "militates against an order for costs in favour of the Respondents which it made and the Appellant is ultimately successful on that issue could lead to potentially unjust and perverse outcomes if costs were awarded to the Respondents to the appeal in NCAT and the Appellant's limitation defence is ultimately successful in the District Court". 1. Whilst the factual scenario advanced in that submission is undoubtedly correct, we do not accept that such outcome would be "potentially unjust and perverse". As our reasons in the substantive appeal record, the obstacles to the success of the Builder's challenge to the decision at first instance were substantial, and have long been recognised in the authorities to which we referred. Put bluntly, the Builder knew, or should have known, that its prospects of success in the appeal were at all times limited. We see no potential perversity or injustice if the Homeowners are ultimately unsuccessful in the District Court proceedings, in which case, they are likely to be ordered to pay the Builder's costs of those proceedings. 2. There are two further reasons why we do not accept that any order for "costs in the cause" should be made. The first is that we are unaware of the source of the power of the District Court to make orders for costs of concluded proceedings in the Tribunal. The Builder did not suggest a source of such power. Further, albeit not necessarily ultimately materially different in practice, the provisions of Rule 38 and Rule 38A with respect to costs in the Tribunal are materially different to the provisions of Rule 42.1 of the Civil Procedure Rules 2005 (NSW) which apply in the District Court. We have not been referred to any authorities in support of the Builder's contention. The appeal was a distinct "event", which has been finally determined. In the circumstances, we are not persuaded that making an order for "costs in the cause" would be appropriate. 3. None of the other matters advanced by the Builder (paragraphs 6 and 7) advances either its resistance to an order for costs or its application for an order for "costs in the cause". We accept that the Appellant has, albeit unsuccessfully, done no more than exercise its "legitimate right" to oppose the transfer of the proceedings to the District Court at first instance, and appeal against the decision to do so. Nor do we accept that the Appellant, or the Respondent for that matter, has been responsible for prolonging the proceedings. In our view, the homeowners having been entirely, or at least overwhelmingly successful in the appeal, and having done nothing which would potentially disentitle them to the benefit of an order for costs, such an order should be made. 4. Although the Builder did not expressly contend that a proportional costs order was appropriate, we do not consider that its asserted success in the appeal would support such an order. In BHP Billiton Iron Ore Pty Limited v National Competition Council (No. 2) [2007] FCA 557, Middleton J observed that: "Where the Court is considering the question of costs in respect of a lost distinct or severable issue or enquiry, which can clearly be treated as distinct and severable, then to determine whether the successful party will lose some or all of its costs, it will be necessary to consider and weight up case management principles, the significance of the issue or enquiry and proportion of the proceedings as a whole and whether the issue or enquiry had any relative strength or merit." 1. In Bostik Australia Pty Limited v Liddiard (No. 2) [2009] NSWCA 68, the general approach of "overall success" rather than a consideration of success or failure with respect to individual issues when determining costs application was endorsed by the Court of Appeal. In Avopiling Pty Limited v Bosevski [2018] NSWCA 219, the Court of Appeal endorsed evaluating success or failure by reference to the "practical outcome" of the proceedings. 2. In Firebird Global Master Fund II Ltd v Republic of Nauru (No. 2) [2015] HCA 15, French CJ, Kiefel, Nettle and Gordon JJ observed [6] that the "preferable approach" with respect to costs should apply when "it may not be said that the event of success is contestable, by reference to how separate issues have been determined", unless there were "special circumstances to warrant a departure from the general rule". Their Honours suggested that there were "good reasons not to encourage applications regarding costs on an issue by issue basis, involving apportionments based on degrees of difficulty of issues, time taken to argue them and the like". 1. In reliance upon any of the foregoing authorities, there is no case for a proportional costs order. 2. In Mitchell, at [10], the Appeal Panel said "It is an uncontroversial principle that the rationale of awarding costs is to partially reimburse the successful party for costs incurred. The intention is not to punish the unsuccessful party, but rather to compensate the successful party for costs incurred." 1. The decision of the High Court in Latoudis v Casey (1990) HCA 59, (1991) 70 CLR 535 was cited in support of that proposition. 2. In LMA Contractors, at [14], and by reference to the decision in Thompson v Chapman [2016] NSWCATAP 6, the Appeal Panel suggested that the resolution of issues such as those raised by the present application is informed by: (i) the Appeal Panel having a general discretion in respect of the award of costs; (ii) the "starting point" in exercising such discretion is that the "usual order for costs" is that a successful party should be entitled to an order for costs in their favour; (iii) there is no absolute rule that, absent disentitling conduct, a successful party is to be compensated by the unsuccessful party; (iv) the factors to be considered in awarding costs in a particular case are not to be confined as to do so would constrain the general discretion; (v) a relevant consideration is whether, by reason of the relative success of the parties on different issues and the time taken to determine those issues that an order for costs based on issues should be made; and (vi) whether, by reason of the nature of proceedings the usual rules should otherwise be displaced in whole or in part. 1. As the High Court observed in Oshlack v Richmond River Council (1998) 193 CLR 72, per Gaudron and Gummow JJ at [22] and McHugh J at [65]: The proper exercise of the discretion requires the Tribunal to do justice between the parties and to exercise the discretion having regard to relevant considerations and in a manner which is not arbitrary or capricious. 2. For the reasons recorded above, we are satisfied that the Builder should be ordered to pay the Homeowners' costs as agreed or assessed on a party and party basis. Order 1. That, pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013, the Respondents' application for costs be determined without an oral hearing. 2. That the Appellant pay the Respondent's costs of the appeal as agreed or assessed on a party and party basis. ********** 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: 02 May 2022