Martin & Sidgreaves v Big Country Developments Pty Limited [2023] NSWCATAP 77

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Martin & Sidgreaves v Big Country Developments Pty Limited [2023] NSWCATAP 77 Hearing dates: On the papers Date of orders: 17 March 2023 Decision date: 17 March 2023 Jurisdiction: Appeal Panel Before: I R Coleman, SC ADJC Principal Member M Gracie, Senior Member Decision: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act (2013) (NSW), dispense with a hearing of any application for an order for the costs of the appeal and/or an order for the costs of the proceedings before the Tribunal at first instance, and determine any such application(s) "on the papers". 2. Allow the Appellants' costs of the appeal on the ordinary basis, as agreed or assessed. 3. Allow the Appellants' costs of the proceedings before the Tribunal at first instance on the ordinary basis, as agreed or assessed, up until 4 November 2021. 4. Allow the Appellants' costs of the proceedings before the Tribunal at first instance from 5 November 2021 on an indemnity basis as agreed or assessed, save for the Respondent's costs of the Appellant's Settlement Agreement Application. 5. Allow the Respondent's costs of the Appellants' Settlement Agreement Application on the ordinary basis, as agreed or assessed. 6. Note but make no order with respect to costs provided in the Consent Orders made in Local Court Proceedings No 2021/67009 on 4 June 2021.

Catchwords: APPEAL- costs of successful appeal and unsuccessful cross appeal – application of NCAT Rules 38 and 38A – usual order as to costs – application for indemnity costs of appeal – application for indemnity costs of proceedings before Tribunal - Calderbank offers – apportionment of costs of appeal where certain grounds were amended or not pursued- whether separate costs order appropriate for unsuccessful and separate application in proceedings while Tribunal's decision was reserved – consideration of consent orders dealing with parties' costs in the Tribunal on transfer of proceedings from the Local Court Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Residential Tenancies Act 2010 (NSW) Retail and other Commercial Leases (COVID-19) Regulation 2020 (NSW), Retail and other Commercial Leases (COVID-19) Regulation (No 2) 2020 (NSW) Retail and other Commercial Leases (COVID-19) Regulation (No 3) 2020 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Bondi Builders Pty Ltd v Dennis [2022] NSWCATAP 317 Brymount Pty Ltd t/as Watson Toyota v Cummins (No 2) [2005] NSWCA 69 Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 Hanave Pty Ltd v Wine Nomad Pty Ltd: Wine Nomad Pty Ltd v Hanave Pty Ltd (No 2) [2022] NSWCATAP 361 Hawkesbury District Health Service Ltd v Chaker (No 2) [2011] NSWCA 30 Macourt v Clark (No 2) [2012] NSWCA 411 McKeith v Royal Bank of Scotland Group PLC; Royal Bank of Scotland Group PLC v James (No 2) [2016] NSWCA 260 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Sheridan Martin & Raelene Sidgreaves v Big Country Developments Pty Limited ACN 000 235 923 [2022] NSWCATAP 312 Vella v Mir (No 3) [2020] NSWCATAP 17 Texts Cited: None Category: Costs Parties: Sheridan Martin & Raelene Sidgreaves (Appellants) Big Country Developments Pty Limited ACN 000 235 923 (Respondent) Representation: Counsel: N Simone (Respondent)