Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Promina Design & Construction Pty Ltd v The Owners – Strata Plan No. 97449 (No 2) [2023] NSWCATAP 164 Hearing dates: On the papers Date of orders: 21 June 2023 Decision date: 21 June 2023 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member Decision: (1) A hearing of the respondent's application for costs of the application for a stay is dispensed with. (2) The respondent's application for costs of the application for a stay is dismissed. Catchwords: COSTS – failed application for a stay of order transferring proceedings from Tribunal to a Court – Appeal Panel not satisfied order capable of being meaningfully stayed – whether r 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) engaged or whether special circumstances warranting an order as to costs established Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Cases Cited: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 Ausino International v Apex Sports [2006] NSWSC 1119 Bonita v Shen [2016] NSWCATAP 159 Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 Fiduciary v Morningstar [2002] NSWSC 432 Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Moseley v AB (No 2) [2017] NSWSC 1812 Promina Design & Construction Pty Ltd v The Owners – Strata Plan No. 97449 [2023] NSWCATAP 122 Texts Cited: None cited Category: Costs Parties: Promina Design & Construction Pty Ltd (Appellant) The Owners – Strata Plan No. 97449 (Respondent) Representation: Counsel: T Smartt (Appellant) Solicitors: Centurion Lawyers (Appellant) Khoury Lawyers Pty Ltd (Respondent) File Number(s): 2023/00116958 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 13 March 2023 Before: G Ellis SC, Senior Member File Number(s): HB 22/47176 REASONS FOR DECISION Summary 1. On 4 May 2023, I dismissed an application for a stay of an order made in the proceedings at first instance by the Consumer and Commercial Division to transfer proceedings before it under the Home Building Act 1989 (NSW) to the District Court: Promina Design & Construction Pty Ltd v The Owners – Strata Plan No. 97449 [2023] NSWCATAP 122. In sum, I was not satisfied that order had any future effect such that it was capable of being stayed. I did, however, indicate that if I was wrong in that I would have exercised my discretion to grant a stay. 2. The respondent sought its costs of that application. I made directions with a timetable for the filing of submissions in respect of costs, noting that the Appeal Panel may dispense with a hearing and deal with the issue on the papers. The parties were directed to address that issue in their other submissions, should they wish to. Neither party opposed the application being dealt with on the papers. As I am satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions and other material lodged with the Tribunal, I will make an order dispensing with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act). 3. For the reasons set out below, I have decided that the respondent's application for costs should be dismissed, with the effect that each party is to pay its own costs of the application. Principles relating to costs of the stay application 1. The primary provision governing costs in relation to proceedings in the Tribunal is s 60 of the Act. Pursuant to that section, each party to proceedings is generally to pay their own costs. However, pursuant to s 60(2) of the Act, the Tribunal may award costs if it is satisfied that there are special circumstances warranting it doing so. Section 60(3) provides a non-exhaustive of relevant factors which might constitute special circumstances. 2. However, in respect of decisions of the Consumer and Commercial Division, and appeals from such decisions, that general rule is modified by rr 38 & 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules). In that regard, where the amount claimed or in dispute in the proceedings at first instance is more than $30,000, the general rule in those proceedings is modified by r 38(2)(b) of Rules and the Tribunal in those proceedings may award costs even in the absence of special circumstances. It is undisputed that this is the case here. 3. In an appeal from a decision in such proceedings it is then necessary to consider r 38A of the rules, which provides: 38A Costs in internal appeals (1) This rule applies to an internal appeal lodged on or after 1 January 2016 if the provisions that applied to the determination of costs in the proceedings of the Tribunal at first instance (the first instance costs provisions) differed from those set out in section 60 of the Act because of the operation of— (a) enabling legislation, or (b) the Division Schedule for the Division of the Tribunal concerned, or (c) the procedural rules. (2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal. 1. Where r 38 is engaged in the proceedings at first instance, r 38A(1) is engaged in an appeal from a decision in those proceedings. However, that is not the end of the enquiry as to whether s 60 of the Act applies to costs in such an appeal. Rule 38A(2) commands that the first instance costs provisions apply in such an appeal, not that the effect of the application of such provisions in those proceedings be carried over to the appeal. As a result, s 60 of the Act will apply in the appeal unless the amount claimed or in dispute in the appeal is also more than $30,000: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25. 2. Each application for costs must be determined on its own merits and the central and overriding principle in any application as to costs is that of doing justice between the parties in each case: Moseley v AB (No 2) [2017] NSWSC 1812 at [65] - [66]. 3. Leaving to one side the issue of whether special circumstances warranting an award of costs exist, the relevant principles in respect of the exercise of the costs discretion in interlocutory proceedings are those summarised in Ausino International v Apex Sports [2006] NSWSC 1119, where Campbell J described the usual exercise of the discretion in interlocutory matters as follows: [55] In contrast, the present proceedings before me are brought on the basis that they are an interlocutory process. The usual order, which is made as to costs concerning interlocutory processes, is that if the plaintiff is the applicant, and succeeds, then the costs of the interlocutory process become the plaintiff's costs in the cause, while, if the plaintiff is the applicant, and loses, the usual order is that the plaintiff pay the defendant's costs of that application. [56] The rationale for that arises from the way that interlocutory proceedings are intended to advance the final hearing. If a plaintiff has a victory on the way to a final hearing, whether that victory is ultimately one which is fruitful will depend upon whether the plaintiff succeeds in the final hearing. However, if the plaintiff brings an interlocutory application and loses, then that interlocutory hearing is one which will, irretrievably, have cost the defendant money, and the justice of the situation is that the defendant should be indemnified for those costs, regardless of the outcome of the proceedings. 1. "Special circumstances" are circumstances that are out of the ordinary but need not be those which are exceptional or extraordinary: Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [60] (Santow J); Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]. Even if satisfied that there are special circumstances, the Appeal Panel must further be satisfied that they are circumstances "warranting an award of costs": Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103 at [21]. 2. The fact that the application was a separate and discrete event in the appeal, which is now complete, may also weigh in favour of making any order that the respondent, if successful in obtaining an order, have its costs payable now, rather than reserved or made costs in the appeal: Fiduciary v Morningstar [2002] NSWSC 432. Consideration 1. The respondent's submissions were primarily directed to the application of the usual costs considerations where s 60 of the Act is inapplicable, as it took the view that r 38A is engaged. It is not. There was no amount claimed or in dispute in the appeal, which relates solely to the order transferring the first instance proceedings to the District Court. As a fallback, though, the respondent did submit that an order for its costs was warranted under s 60 of the Act because: 1. The merits of the application for a stay were weak; 2. The appeal faces serious obstacles, as set out by me in the decision dismissing the application for a stay, at [28]; and 3. The stay had limited prospects of success, for the reason ultimately determinative, i.e., that there was no prospective effect of the order which could be "stayed". 1. I should record that the appellant made submissions that rr 38 & 38A are ultra vires, which were contrary to and did not engage with the decision of another Appeal Panel in Bonita v Shen [2016] NSWCATAP 159. However, I do not need to deal with those submissions as I am satisfied those rules have no relevant application here. The appellant also sought to characterise the result of the application for a stay as each party having had relative success, because I would have stayed the order if satisfied I had power to. I do not think that characterisation is apt where the appellant failed entirely for a reason brought to its attention prior to the hearing. 2. However, I do accept that the application was in respect of an apparently novel issue in the Tribunal and that the stay would have been granted, had I resolved the question of power in favour of the appellant. I do not think the application can be described as having been unreasonably lodged or maintained. In respect of the apparent merit of the appeal, the appellant only needed to satisfy me it was reasonably arguable, which it did. Self-evidently, there is nothing otherwise unusual in a party failing in an application for a stay. 3. On that basis, I am not satisfied there are special circumstances warranting an award of costs. Orders 1. My Orders are as follows: 1. A hearing of the respondent's application for costs of the application for a stay is dispensed with; and 2. The respondent's application for costs of the application for a stay is dismissed. ********** 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: 21 June 2023