Supreme Court New South Wales Medium Neutral Citation: Mullally v Lucien [2023] NSWSC 373 Hearing dates: 1 March 2023 Date of orders: 17 April 2023 Decision date: 17 April 2023 Jurisdiction: Common Law Before: Yehia J Decision: (1) Leave to appeal refused (2) Appeal dismissed (3) The applicant is to pay the respondent's costs of this application Catchwords: Appeals — Leave to appeal — From the Appeal Panel of the New South Wales Civil and Administrative Tribunal — Where applicant alleged the Appeal Panel erred in adopting the finding that the respondent was "successful" — Whether it was open to find that the respondent was entirely or "somewhat" successful — Leave to appeal refused — Appeal dismissed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 83, 83(1), Sch 4 cl 12(1) Civil Administrative Tribunal Rules 2014 (NSW), rr 37, 38, 39, 40 Cases Cited: Booth v Fourmeninapub Pty Ltd [2020] NSWCA 57 Collins v Urban [2014] NSWCATAP 17 Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 House v R (1936) 55 CLR 499; [1936] HCA 40 Lucien v Mullally [2022] NSWCATAP 257 Lucien v Mullally; Mullally v Lucien (No 2) [2022] NSWCATCD Mullally v Lucien [2022] NSWCATAP 258 Nutek Constructions Pty Ltd v Slotwinski [2021] NSWSC 832 Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 Slotwinski v Nutek Constructions Pty Ltd [2021] NSWCATAP 113 Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 Vella v Mir (No 3) [2020] NSWCATAP 17 Yu v Cao [2015] NSWCA 276 Slotwinski v Nutek Constructions Pty Ltd [2021] NSWCATAP 113 Category: Principal judgment Parties: Nerida Mullally (Applicant) Anthony Allan Lucien (Respondent) Representation: Counsel: M Fraser (Applicant) J Hyde (Respondent) Solicitors: MBA Lawyers (Applicant) Wilkinson Building & Construction Lawyers Pty Ltd (Respondent) File Number(s): 2022/00260238 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Appeal Panel Citation: [2022] NSWCATAP 258 Date of Decision: 04 August 2022 Before: S Thode, Senior Member AR Boxall, Senior Member File Number(s): 2022/00362358 Judgment 1. By Summons filed on 1 September 2022, Ms Nerida Mullally, the applicant on this application, seeks leave to appeal a decision of the New South Wales Civil and Administrative Tribunal Appeal Panel (the Appeal Panel), refusing leave to appeal and dismissing the appeal against the decision of the New South Wales Civil and Administrative Tribunal (the Tribunal) ordering the applicant to pay the respondent's costs of application HB 19/48969. 2. The applicant seeks leave pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). Section 83(1) provides that: "A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings." Background 1. The background to the application involves two proceedings that commenced before the Tribunal which were heard together. The proceedings involved disputes arising out of a contract concerning alterations and additions at a residential property in Newtown. The subject contract was entered into on 4 October 2017. Given that the proceedings before the Tribunal were heard together, and the parties were respectively both plaintiffs and defendants, I intend to refer to the parties in this judgment as the "applicant" or "owner", and the "respondent" or "builder". 2. On 4 October 2017, the parties executed the contract. The contract was in the form of the New South Wales Fair Trading, "Home building contract for work over $20,000", and specified a contract price of $812,770, inclusive of GST. By 1 March 2018, the builder commenced work under the contract. A number of claims for variations of the contract were made by the builder. 3. Following payment of the deposit, the builder made seven claims for progress payments. The plaintiff paid a total of $711,620.62, inclusive of GST, for progress claims numbered 1–6, and disputed progress claim number 7. The sum of money owed to the builder under the contract for progress claim number 7 was $111,192.27. 4. On 14 December 2018, the owner, following an altercation with the builder, called the police who instructed the builder to leave the site. The locks on the site were changed. On 17 December 2018, the parties agreed that the builder would return to the site and complete the works. 5. Between 18 January 2019 and 24 April 2019, there was correspondence between the builder's lawyers and the owner's lawyers, which included the following. 1. A document dated 5 April 2019 entitled "owners notice of default" from the owner's lawyers to the builder's lawyers (the 5 April 2019 notice). 2. A document dated 24 April 2019 entitled "owners notice of termination" from the owner's lawyers to the builder's lawyers (the 24 April 2019 notice). 3. A letter dated 6 May 2019, from the builder's lawyers to the owner's lawyers asserting that the owner had repudiated the contract and advising that the builder accepted that repudiation (the 6 May 2019 letter). 1. On 31 October 2019, the builder commenced proceedings HB 19/48969 (the HB 19/48969 proceedings). The builder filed a home building application against the owner, in which he claimed $142,031.73 in debt. The debt was the total of the outstanding invoices, and in quantum meruit together with interest under the contract and damages for repudiation of the contract. 2. The builder filed points of claim in which he relevantly claimed the following. 1. $111,192.27; being the total of the balance of the progress claim number 7, the final progress claim. 2. $16,323.80; on a quantum meruit basis for all works done at the owner's request. 3. Interest on overdue payments. 4. Damages for the wrongful termination and repudiation of the contract by the owner arising from the 24 April 2019 notice. 5. Costs. 1. On 19 December 2019, the applicant filed points of defence. She claimed that she was not liable for the balance of progress claim number 7, nor was she liable for some of the variation claims. The applicant denied that she wrongfully terminated or repudiated the contract. 2. On 19 December 2019, the applicant commenced proceedings HB 19/56785 against the respondent. She claimed $127,516.07 as damages for breach of the contract, being the cost of completing the works, or alternatively, the diminution in value of the property due to the defects of the works, and the loss from the delay in completing the works. 3. On 19 December 2019, the applicant filed points of claim (which were amended in minor respects by an amended points of claim, filed on 14 October 2020) in which she relevantly claimed the following. 1. The builder breached the contract by failing to diligently proceed with the works, failing to remedy defective work, and failing to remove faulty or unsuitable materials. 2. The owner terminated the contract, in accordance with its terms, when the builder failed to remedy those breaches after being given notice. 3. The costs of the rectification of the works for breach of the statutory warranties. 4. Alternatively, the diminution in value of the property due to the defects in the works. 5. Damages for delay. 6. Damages for breach of the contract, including the costs of the completion of the works. 7. Interest. 8. Costs. 9. An order that the builder provides to the owner all certificates regarding the works carried out by the builder which are necessary for the owner to obtain an occupation certificate in respect of the property. 1. On 22 September 2020, the respondent filed points of defence as follows: 1. he denied that he failed to proceed diligently with the works; 2. asserted that the applicant was not entitled to terminate the contract and that she had waived her rights to enforce the statutory warranties in respect of minor defects, due to the wrongful termination of the contract; 3. refuted the applicant's claim for the cost of incomplete works because of the wrongful termination of the contract; and 4. contended that the applicant was not entitled to any certificates in relation to the works until final payment is made, or in the alternative, that she had waived such an entitlement. 1. The applications were heard on 29 April 2021, 21 May 2021, and 15 September 2021 respectively. The parties filed approximately 4000 pages of evidence and submissions. 2. On 25 November 2021, the Tribunal published its decision, ordering the respondent to pay the applicant the sum of $31,660.65. The Tribunal's calculation was as follows: 1. contract sum: $812,770.00; 2. plus variations (# 1, #2, #4 to # 8, #10, #11 and #13): $9,856.41; 3. less payments made by the owner to the builder: $711,670.62; 4. = amount owing to the builder: $110,889.79; 5. less defects: $64,229.35 6. less incomplete works: $54,462.70; and 7. less payments made by the owner on behalf of the builder: $23,923.90. 1. The respondent appealed against the decision. The appeal was unsuccessful: see Lucien v Mullally [2022] NSWCATAP 257. 2. The Tribunal published a separate decision in respect of costs on 18 February 2022: see Lucien v Mullally; Mullally v Lucien (No 2) [2022] NSWCATCD. The Tribunal made the following orders. 1. The owner to pay the costs of the builder regarding proceedings HB 19/48969, as agreed or assessed, on the basis set out in the legal costs legislation (as defined in s 3A of the Legal Profession Uniform Law Application Act 2014 (NSW)). 2. The builder to pay the costs of the owner of proceedings HB 19/56785, as agreed or assessed, on the basis set out in the legal costs legislation (as defined in s 3A of the Legal Profession Uniform Law Application Act 2014 (NSW)). 1. The applicant appealed against order 1. The respondent did not appeal against order 2. 2. On 4 August 2022, the Appeal Panel published its decision refusing leave to appeal and dismissed the appeal: see Mullally v Lucien [2022] NSWCATAP 258 (the Appeal Panel Decision). This is the decision the subject of the present proceedings. The Appeal Panel Decision 1. The Appeal Panel set out the scope and nature of internal appeals and the circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial division: see cl 12(1) of Schedule 4 of the NCAT Act. The Appeal Panel referred to Collins v Urban [2014] NSWCATAP 17 at [84], where it was stated that ordinarily, it is appropriate to grant leave to appeal only in matters that involve: "(a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed." 1. The singular ground of appeal before the Appeal Panel was as follows: "The Tribunal's discretion as to costs miscarried. On no reasonable view could the builder's case be said to have succeeded. The owner's defence of set-off succeeded so that the builder's case failed in its entirety." 1. The Appeal Panel was satisfied that the builder was "wholly successful" in the proceedings instituted by him, claiming an outstanding debt under the contract and, in the alternative, a claim for quantum meruit. It was held to be immaterial that no "order" was made in his favour. The Appeal Panel was satisfied that: "…the debt to the builder was found and accounted for as a significant set-off to the owner's claim. In addition, the builder claimed a series of variations for work he claimed he performed with the consent of the homeowner. The builder, therefore, was somewhat successful in his claim." 1. The Appeal Panel noted a number of findings that were made in favour of the builder as follows. 1. As to variations in additional works (items 19–37 of the amended Scott schedule from which variation #9 was omitted). 2. The agreement that the builder was entitled to claim items 19, 20, 22, 23, 24, 25, 26 and 27 (variations #1, # 2, # 4, # 5, # 6, # 7, # 8, and # 10) as a variation on the total amount due is $14,727.21, exclusive of GST. 1. The respondent was successful on the variations, which were partly conceded and partly found by the Tribunal. In addition, the Appeal Panel noted that the respondent was successful "…as to a significant part of his claim which is payment outstanding under the contract in the sum of $110,889.79, which in the event was accounted for by way of defence or set off to the owner's claim". 2. The findings as to variations and the outstanding sum under the contract were findings that underpinned the critical conclusion in the decision to award costs against the applicant in respect of proceedings HB 19/48969. The Appeal to this Court 1. The Summons sets out five appeal grounds as follows. 1. The appeal panel erred in law in dismissing the applicant's appeal against a costs order in the respondent's favour, in proceedings HB 19/48969, in the following circumstances: 1. Mullally as owner, and Lucien as builder, were parties to a contract for the performance of residential building work; 2. Lucien commenced proceedings, HB 19/48969, against Mullally seeking the whole of the unpaid balance of the contract price, plus variations. Notwithstanding that Lucien did not complete the work under the contract, and the variations in the work he carried out were defective; 3. Mullally's defence disputing the debt succeeded with the effect that the Tribunal at first instance found that Mullally did not owe Lucien money as alleged; 4. notwithstanding the result, the Tribunal found that Lucien was "successful" and ordered Mullally to pay Lucien's costs of the proceedings; and 5. the Appeal Panel dismissed Mullally's internal appeal against the costs order in Lucien's favour, on the basis that Lucien was "somewhat successful". 1. The Appeal Panel erred in failing to find that the characterisation of the defendant's failed case as "successful" was a miscarriage of discretion amounting to an error of law. 2. Alternatively, to the extent that leave was required to appeal the costs order in proceedings HB 19/48969, the Appeal Panel erred in refusing leave in circumstances where the costs decision in respect of those proceedings was not fair, equitable, and would cause substantial injustice to Mullally. 3. The Appeal Panel erred in providing their own reasons for the costs decision in the HB 19/48969 proceedings when such reasons did not appear in the primary judgment. 4. The Appeal Panel failed to engage with Mullally's case and failed to give adequate or proper reasons for their orders. Submissions on this Appeal The Applicant's Submissions 1. Although the Summons identifies five grounds of appeal, the primary complaint is that the Appeal Panel made several factual errors: namely, a statement that the builder had been "somewhat successful"; and the outcome was supported by a "clearly erroneous finding" that the builder's case was successful. It was contended that the clear error was the conclusion that the builder was 'successful', and the absence of reasoning which explained that conclusion. 2. The applicant contended that the respondent was not awarded $110,889.79 or any other amount, the respondent's case was defeated in its entirety, and he was awarded nothing. In support of the contention that the respondent "lost both cases", the applicant pointed to the fact that the respondent failed, in the proceedings commenced by him, to obtain an award in his favour. In the second proceedings, commenced by the applicant, the respondent was ordered to pay the applicant $31,660. 3. It was submitted that the Appeal Panel erred in adopting a conclusion that the respondent was successful in his claim for debt and variation. Rather than correct the erroneous conclusion of the Tribunal, that the respondent was successful in his proceedings, the Appeal Panel "…sought to engraft onto that conclusion findings that are inconsistent with the substantive judgment at first instance". 4. The Appeal Panel's decision was said to be infected by error. By failing to reject the characterisation of the respondent's failed case as "successful", a miscarriage of discretion occurred, amounting to an error of law. In the alternative, to the extent that leave was required to appeal the costs order, the appeal panel erred in refusing leave in circumstances where the costs decision (HB 19/48969) was not fair and equitable and would cause substantial injustice to the applicant. 5. Ultimately, the applicant submitted that the Senior Member, at first instance, applied the "costs follow the event approach". However, he applied the approach to a mistaken view of the facts, that is, the respondent did not succeed in his case either because he was not entitled to damages or because his claim was defeated by a set-off: see Slotwinski v Nutek Constructions Pty Ltd [2021] NSWCATAP 113. The Respondent's Submissions 1. The respondent submitted that there is no error in the Appeal Panel's decision and leave should be refused, the appeal dismissed, and costs ordered against the applicant. 2. The respondent further submitted that the Appeal Panel correctly concluded that the applications before the Tribunal were matters where both parties achieved a measure of success, including the respondent's success in his claim for debt and variations. The success enjoyed by the respondent is said to be demonstrated by the decision that he was owed $110,889.79. 3. The exercise of discretion to award costs depends upon matters of impression and evaluation. The respondent pointed to the comprehensive judgment delivered by Senior Member Blake (the primary judgment) as demonstrating a careful assessment of the evidence and the issues which were litigated at first instance. Notwithstanding the fact that some of the findings in that judgment were favourable to the applicant, the Senior Member and the Appeal Panel concluded that the respondent enjoyed some success, namely a debt owed under the contract and some variations. It was submitted that there is therefore nothing "…unjust or unreasonable about the exercise of the discretion on costs…" [1] Legal Principles 1. The success of this appeal depends on demonstrating error in the sense contemplated by the Court in House v R (1936) 55 CLR 499 at 504–505; [1936] HCA 40 (House) Namely, demonstrating that there has been the application of a wrong principle; a mistake of facts or a failure to have regard to material considerations; or a conclusion which was, on the facts, "unreasonable or plainly unjust". 2. The principal controversy is whether the Appeal Panel erred in adopting an erroneous conclusion that the respondent was successful in his claim for debt and variations, and finding that the respondent, "was successful as to a significant part of his claim which is payment outstanding under the contract in the sum of $110,889.79". 3. Section 83 of the NCAT Act relevantly provides: "(1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law, to the Court against any decision made by the Tribunal in the proceedings. … (3) The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to the following – (a) an order affirming, varying or setting aside the decision of the Tribunal, (b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court." 1. In Nutek Constructions Pty Ltd v Slotwinski [2021] NSWSC 832 at [36]–[39], Davies J set out the principles to be considered in deciding whether leave to appeal should be granted: "In Ackerman v Morgan [2019] NSWSC 1250, Walton J considered the principles to be considered in deciding whether leave to appeal should be granted. His Honour made reference to a number of decisions of the Court of Appeal, particularly Be Financial Pty Ltd v Das [2012] NSWCA 164 and Chapmans Ltd v Yandell [1999] NSWCA 361. His Honour then said: 'The relevant principles may be summarised as follows: (1) An applicant for leave must demonstrate something more than that the trial judge was arguably wrong in the conclusion arrived at, and that where small claims are involved, it is important that there be early finality in determination of litigation, otherwise the costs that will be involved are likely to swamp the money sum involved in the dispute: Carolan. (2) Ordinarily it is appropriate to grant leave to appeal only concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Jaycar at [46]. (3) The leave requirement is a preliminary procedure "recognised by the legislature as a means of enabling the Court to control in some measure the volume of appellate work requiring its attention": Coulter at 356 (Mason CJ, Wilson and Brennan JJ). Whilst that was a criminal matter, the statement is clearly applicable to civil, as well as criminal, appellate jurisdiction: Be Financial at [32]-[36] (per Basten JA, with Tobias AJA agreeing). (4) A requirement of leave to appeal is intended to act as a filter to ensure that unsuitable appellant proceedings are not able to be brought, with the demands they place upon the resources of the Court and the burden they place upon other parties and the delays which they cause to other litigants: Chapmans at [11] per Fitzgerald JA (with whom Mason P and Davies AJA agreed). (5) An application for leave is not a proceeding in the ordinary course of litigation but a preliminary procedure: Collins v The Queen (1975) 133 CLR 120 at 122; [1975] HCA 60. (6) Section 58 of the Civil Procedure Act applies and requires the Court to consider "the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction": s 58(2)(b)(vi). Leave should be granted only where there are substantial reasons to allow an appellate review (Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564; [2000] FCA 1572, such as where there is an error of principle which, if uncorrected, will result in substantial injustice. Where there is no question of principle, leave to appeal will usually be refused (see example, Jaycar; Zelden; Be Financial at [32]–[36] (per Basten J, with Tobias AJA agreeing); De Armas v Peters [2015] NSWSC 1050 per Wilson J (which matter concerned an application for leave to appeal against a Local Court interlocutory judgment under s 40(2), no injustice and no question of wider importance, leave refused); Rose v Tunstall [2018] NSWCA 241 at [33]-[34].' In Ashi Pty Limited v Karasco Investments Pty Ltd [2009] NSWSC 780, I considered the principles that apply to a need for leave to appeal against costs orders. That case concerned s 40(2)(c) of the Local Court Act 2007 (NSW), but the principles apply more widely. In that case, I said: 'The result is, in my opinion, that the party seeking leave to appeal needs to point to some other matter which in justice requires that leave to appeal be granted. Ashi was not able to identify any additional matter over and above the error of principle or law which the Magistrate was said to have made, apart from an assertion that it had suffered a detriment. In my opinion, it could reasonably be expected that any party appealing or seeking leave to appeal had suffered a detriment. That in itself cannot be an additional matter that justice requires leave to be granted. Ashi conceded that if the correct order was made, namely, that Ashi pay Dr Farmer's costs, the net difference between that and the order currently made was about $15,000. By way of contrast, s 101(2)(r) Supreme Court Act 1970 requires leave to appeal to the Court of Appeal from a final judgment of this Court where the matter at issue is less than $100,000. Further, s 101(2)(c) (like s 40 Local Court Act 2007) requires leave to appeal to the Court of Appeal from an order as to costs only. Whilst a direct comparison cannot be made between s 101(2)(r) which is concerned with an appeal to the Court of Appeal, and the appeal that can be made with leave to this Court from the Local Court under s 40, those two provisions suggest that where the matter, in the first instance, is concerned only with a costs order and, in the second instance, only concerns approximately $15,000, there would need to be some significant further factor to justify leave being granted. … Ashi's main submission why leave should be granted was because the Magistrate, it was argued, had made an error of principle resulting in Ashi having to pay more costs than it properly should have done. I shall now deal with Ashi's submissions in this regard and return to the question of leave later in this judgment.' What was said there has been followed in a number of cases subsequently, including Ackerman v Morgan, Stephen Kirkman v Commissioner Department of Corrective Services [2013] NSWSC 833, Onik New Energy Australia Pty Limited v Henderson [2016] NSWSC 186 at [10]; and Pratten v Johns [2010] NSWSC 327 at [24]-[25]." 1. More recently, in Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 (Thomas and Naaz Pty Ltd), the Court considered the conferral of jurisdiction pursuant to s 83 of the NCAT Act. There is no appeal as of right, but rather it is necessary for the applicant to make a case for leave. Importantly, the appeal in this Court is confined to being "[an] appeal on a question of law". It is not sufficient merely to assert that the Tribunal or Appeal Panel erred in law in order to satisfy the limited conferral of jurisdiction: see Thomas and Naaz Pty Ltd at [32]; Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]; Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [6], [22]. 2. In Booth v Fourmeninapub Pty Ltd [2020] NSWCA 57 at [21] (Leeming JA, with Bell P (as his Honour then was) and White JA agreeing), it was said that "[a]n appellant cannot convert a challenge which is wholly or partly factual to one which is on a 'point of law' merely by including those words in the formulation of the ground". The purported error must give rise to a question of law. 3. The distinction between what is, or is not a question of law, has been said to be "vexed and context dependent": see Thomas and Naaz Pty Ltd at [52]; Da Costa v The Queen (1968) 118 CLR 186 at 194; [1968] HCA 51. 4. In Thomas and Naaz Pty Ltd, Leeming JA stated, at [53]: "The ensuing decisions over more than half a century have not altered the position, as is plain from the discussion in Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [31]-[61]. I do not think it is possible to enunciate a clear test of what is, or is not, a question of law for the purposes of s 83 of the Civil and Administrative Tribunal Act, and in the absence of anything like full submissions on the point there is no occasion to do so. However, to focus upon the points which were addressed in oral submissions, it is well settled in relation to statutes conferring limited rights of appeal from tribunals (which are often of a specialist nature) to a court that a particular finding which is "perverse" or "unreasonable" or "not reasonably open" is not ordinarily a question of law. In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 157, Glass JA, with whom Samuels JA agreed, said that: '…when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the [course] of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council; Australian Gas Light Co v Valuer-General.'" 1. It is clear from the line of authority that the applicant must establish a case for leave. Unless error, giving rise to a question of law, can be established in the Appeal Panel's decision to refuse leave and dismiss the appeal, this Court cannot intervene. Consideration 1. The Civil Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) rr 37–40 deal with the determination of proceedings. Rule 38 deals with costs in the Consumer and Commercial Division of the Tribunal, and relevantly provides: "Costs in the Consumer and Commercial Division of the Tribunal (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." 1. The general principles concerning the awarding of costs were considered by the Appeal Panel in Vella v Mir (No 3) [2020] NSWCATAP 17 at [28]–[38]: "Clause 38 gives the Tribunal a wide discretion to make an order for costs. It does not specify the factors the Tribunal must take into account in exercising the discretion, although the discretion to make such an order must be exercised judicially: see, for example, Ruddock v Vadarlis [2001] FCA 1865 at [9]. Where an application has been heard and determined on the merits and Clause 38 applies, the appropriate starting point for the exercise of the discretion is not that the parties are to pay their own costs. Rather, it is the well-established position at common law; that is, that the purpose of making a costs order is to provide compensation to the party in whose favour the order is made for the expense the party has been put to in prosecuting or defending legal proceedings. In general terms, this means that a party who is successful is entitled to an order for costs in its favour, subject to exceptions generally involving misconduct on the part of that party: Latoudis v Casey [1990] 170 CLR 534; Oshlak v Richmond River Council [1998] HCA 11. In BNT Constructions Pty Ltd v Allen [2017] NSWCATAP 186 the Appeal Panel, having set aside a costs order made in the Consumer and Commercial Division, decided to re-exercise the costs discretion. Clause 38 was the applicable costs provision in that case. At [67] the Appeal Panel noted the following principles relevant to the exercise of the discretion: '(1) the starting point is that a successful party should be entitled to an order for costs in his favour; (2) an award of costs is by way of an indemnity and not as punishment; (3) there is no absolute rule that, absent disentitling conduct, a successful party is to be compensated by the unsuccessful party; (4) the factors to be considered are not to be confined as to do so would constrain the general discretion; (5) the relative success of the parties on different issues and the time taken to determine them may be relevant; (6) the nature of the proceedings is relevant; (7) the proper exercise of the discretion requires a decision maker to do justice between the parties and to exercise the discretion having regard to relevant considerations and in a manner which is not arbitrary and capricious.' Generally, costs are awarded in favour of the successful party based on the outcome of the proceedings as a whole, without differentiating between particular issues on which the party may not have been successful. That said, a different costs order may be made if the losing party succeeds on significant issues: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [31]–[36]; Sydney Ferries v Morton (No 2) [2010] NSWCA 238 at [10]–[12]. The dollar amount of a particular claim does not determine its dominance in the proceedings. Rather, regard must be had to all of the work involved in prosecuting and defending the parties' various claims, including but not limited to the time taken up at the hearing. In Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) (2011) 288 ALR 385, Campbell JA (with Macfarlan JA and Young JA agreeing) held at [107] that an issue or group of issues is "clearly dominant" when it is clearly dominant in the proceedings as a whole. In that case, the approach by counsel to analysing the percentage of costs between the parties - counting the proportion of paragraphs and pages devoted to each factual topic - was held at [84] to be "a highly artificial way of proceeding" which gave "a false air of mathematical precision". In relation to separable issues, a successful party's entitlement to the whole of the costs of the proceedings should not be discounted to allow for another party's success in a separate issue that played a very minor part in the proceedings as a whole: Macourt v Clark (No 2) [2012] NSWCA 411 at [7]. Further, in Hawkesbury District Health Service Ltd v Chaker (No 2) [2011] NSWCA 30 at [14], the Court of Appeal held that the severability of one issue on which the successful party failed is not, without more, sufficient to warrant departure from the general approach. The exercise of discretion will often depend upon matters of impression and evaluation: Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 at [11]." 1. It is accepted that the usual order as to costs is that costs follow the event. The applicant submitted that the discretion regarding costs has not been exercised judicially, but rather in a "…capricious and arbitrary manner, and without regard to the positions adopted by the parties". The question as to whether the discretion to award costs to the respondent miscarried is a matter of public interest because, if found to be infected by error and uncorrected, it has the potential to cause confusion and uncertainty in cases where costs are an issue. 2. In determining whether error has been established, it is necessary to consider whether it was open to find that the respondent was successful, either entirely or in part, in his proceedings (HB 19/48969). In his judgment on costs, the Senior Member concluded at [24]: "I am satisfied that the builder was successful in proceedings HB 19/48969 and that the owner was successful in proceedings HB 19/56785, and having regard to the principles in Vella (No 3) at [28]-[33] that there is no reason why the usual rule as to costs should not apply to each of the two proceedings. I do not accept that any of the submissions advanced by the builder warrant a departure from the usual rule as to costs. While the owner did not recover as much as originally claimed, she nonetheless recovered a substantial sum against the builder in proceedings HB 19/56785. I also do not accept that any of the submissions advanced by the owner warrant a departure from the usual rule as to costs in respect of proceedings HB 19/48969. Contrary to the submission of the owner, the builder was successful in proceedings HB 19/48969." 1. The ground of appeal before the Appeal Panel was that the Tribunal's discretion miscarried, constituting an error of law. Further, or in the alternative, the applicant submitted that the finding as to costs was unreasonable or plainly unjust given the builder succeeded on only one contested item of his claim, that is, Item 30 Variation 13, in the amount of $660. 2. The respondent's claim included the balance of the contract price in the amount of $110,955.79, plus variations performed in the amount of $9856.41. 3. The Appeal Panel, in adopting the Tribunal's finding that the respondent had been successful, stated: "The builder commenced proceedings first, seeking a debt outstanding under the contract and in the alternative a claim for restitution or quantum meriut. The builder was wholly successful on that issue, and it is immaterial that no 'order' was made in his favour, the debt to the builder was found and accounted for as a significant set-off to the owner's claim. In addition, the builder claimed a series of variations for work he claimed he performed with the consent of the homeowner. The builder therefore was somewhat successful in his claim". 1. The Appeal Panel referred to the variations which were agreed to, and the "amount owing to the builder" which was accounted for "by way of defence or set off to the owner's claim". The Appeal Panel refused leave and dismissed the appeal, holding that the builder was successful in respect of two out of three "readily discernible" separate aspects of his application. The builder was somewhat successful in his application, as was his defence to the owner's claim. 2. The Appeal Panel inferred that the findings as to variations and the outstanding sum owing under the contract (which were sums taken into account in the calculation that ultimately led to the order that the respondent pay the applicant the sum of $31,660.65), gave rise to the Senior Members "critical conclusion in the cost's decision that 'the builder was successful in proceedings HB 19/48969'". It was on that basis that the Appeal Panel agreed that the builder was "…to a degree, successful in his claim". That inference was available on the material before the Appeal Panel. Does the Appeal Raise a "Question of Law"? 1. In order to determine whether there was a miscarriage of discretion amounting to an error of law, it is necessary in my view, to consider the findings in respect of the respondent's claim (HB 19/48969) as set out in the primary judgment. In order to determine whether it was open to find that the respondent was "successful", justifying a costs order in the "usual way". 2. The respondent, in proceedings HB 19/48969, relevantly claimed an amount of $111,192.27, being the total of the balance of the final progress claim (progress claim # 7). He also claimed a sum of $16,323.80, on a quantum meruit basis for all works done at the owner's request. The points of claim included a claim for damages for the wrongful termination and repudiation of the contract by the owner arising from the 24 April 2019 notice. 3. The Senior Member identified 12 issues for determination, which were issues relevant to both proceedings. In respect of the proceedings brought by the applicant (HB 19/56785), a number of favourable findings were made in her favour. Relevantly, the Senior Member made the following findings. 1. The builder had failed to proceed with the works diligently, in breach of the contract as of 5 April 2019. 2. Some of the work undertaken by the builder was found to be defective. 3. The builder had breached clause 6 of the general conditions and thereby repudiated the contract. The reasonable cost of rectifying the defective work was calculated at $64,229.35. 4. Some of the work undertaken by the builder was incomplete. The sum of $54,462.70 was found to be the reasonable amount to complete the incomplete work. 1. In respect of proceedings HB 19/48969, the Senior Member rejected the claim that the applicant had "wrongfully terminated" and "repudiated" the contract, as claimed by the respondent. 2. The Senior Member concluded: "As the builder did not comply with the owner's request to remedy the default of failing to proceed with the works diligently by 19 April 2019, then I am satisfied that the owner by the 24 April 2019 notice, validly terminated the contract under its terms. As the owner validly terminated the contract under its terms on 24 April 2019, I reject this submission of the builder that the owner by the 24 April 2019 notice repudiated the contract." 1. However, the respondent was successful in his claim for the sum owed under the contract for the last progress claim. He was also successful (either by way of agreement or, in one instance, a positive finding) with respect to some of the variations. 2. The Appeal Panel agreed with, and adopted, the finding that the respondent was successful in his claim. I do not accept the contention that the Appeal Panel failed to engage with the applicant's case or failed to give adequate proper reasons for the orders. The Appeal Panel properly applied the relevant principles as enunciated in House. 3. Costs decisions are discretionary decisions. In Yu v Cao [2015] NSWCA 276, (McColl JA, Sackville AJA and Adamson J agreeing), the Court said at [157]: "It was common ground that as the costs order involved the exercise of the s 98 costs discretion, the success of the appeal depended on demonstrating error in the House v R sense. Such error may be demonstrated if the primary judge acted upon a wrong principle, mistook the facts or failed to have regard to material considerations or reached a conclusion which was, on the facts 'unreasonable or plainly unjust'." 1. Given the discretionary nature of costs decisions, I am not persuaded that the applicant has established that the appeal raises a "question of law". The respondent's proceedings included a claim for the sum owing under the contract for the disputed progress claim #7, and for some variation. The respondent was successful to that extent. It was open to the Appeal Panel to find that the respondent did succeed in his claim for the sum owing under the contract for disputed progress claim #7. 2. The Appeal Panel also applied the correct principle in respect of the unreasonable or plainly unjust ground, noting that it is insufficient that the appellate court might itself exercise the discretion differently: see Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61. 3. As stated earlier, the appeal to this Court is confined to being "[an] appeal on a question of law". Those constraints are elements of the limited grant of jurisdiction conferred by the statutes creating the rights of appeal: see Thomas and Naaz Pty Ltd at [31]. The exercise of discretion with respect to the award of costs depends upon matters of impression and evaluation. I am not persuaded that the questions raised by the applicant are in fact questions of law which engage this Court's limited appellate jurisdiction. 4. Accordingly, I make the following orders. 1. Leave to appeal refused. 2. Appeal dismissed. 3. The applicant is to pay the respondent's costs of this application. Endnote 1. Transcript, dated 1 March 2023, p 12:49. 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: 17 April 2023