Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Treadgold-Svir v Dynamik Constructions Pty Ltd (No 2) [2023] NSWCATAP 271 Hearing dates: On the papers Date of orders: 11 October 2023 Decision date: 11 October 2023 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President A Lo Surdo SC, Senior Member Decision: 1. The hearing of the application for costs and the application for a non-publication order is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013. 2. The appellant is to pay 95% of the respondent's costs of the appeal proceedings, such costs to be as agreed or assessed on an ordinary basis. 3. Any application in connection with costs of the proceedings at first instance is to be first brought in the Consumer and Commercial Division. 4. The application by the appellant to have our reasons for decision bearing medium neutral citation Treadgold-Svir v Dynamik Constructions Pty Ltd [2023] NSWCATAP 216 redacted or otherwise removed from the Caselaw website is refused. Catchwords: COSTS – Applications by both parties – costs application includes appellant's costs of proceedings at first instance – failure to prosecute the application for costs of the proceedings at first instance despite directions made – failure to appeal default order made in the proceedings at first instance – inappropriateness of Appeal Panel dealing with costs of the proceedings at first instance in these circumstances – limited success of appellant in appeal proceedings – departure from the usual order that a successful party be entitled to the costs of the appeal where r 38 applies. PRACTICE AND PROCEDURE – non-publication order Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Aerolink Air Services Pty Limited v Bankstown Airport Ltd (No. 2) [2019} NSWSC 183 Bonita v Shen [2016] NSWCATAP 159 Bostick Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Forest v Suzanne [2022] NSWCATAP 188 John Fairfax Publications Pty Ltd v Ryde Local Council [2005] NSWCA 101; (2005) 62 NSWLR 512 Thompson v Chapman [2016] NSCATAP 6 Treadgold-Svir v Dynamik Constructions Pty Ltd [2023] NSWCATAP 216 Texts Cited: Nil Category: Principal judgment Parties: Nadia Treadgold-Svir (Appellant) Dynamik Constructions Pty Ltd (Respondent) Representation: Counsel: Appellant (In person) M Hamdan (Respondent) Solicitors: Appellant (Not applicable) Holman Webb Lawyers (Respondent) File Number(s): 2023/141497 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 03 April 2023 Before: H Woods, Senior Member File Number(s): HB 20/42435 reasons for decision Introduction 1. On 4 August 2023 we made orders dealing with the substantive appeal and published reasons for decision (Reasons): Treadgold-Svir v Dynamik Constructions Pty Ltd [2023] NSWCATAP 216. 2. As recorded in the Reasons at [2]: The appellant sought orders for payment of the following amounts: (1) $369,000.00 for the cost to remedy defective and incomplete work and consequential damage; (2) $15,445.44 for losses in respect of personal property and other items; (3) $114,000.00 for lost rental income and interest on monies paid to the respondent and for the purchase of materials. 1. The appellant succeeded in varying the original award by $182.83 to a total of $48,780.29. Otherwise her appeal was dismissed. 2. The Appeal Panel made directions concerning any applications for costs. Each of the parties seek costs of the appeal. 3. In the case of the appellant, she seeks an order for costs both of the proceedings at first instance and of this appeal. This application is contained in a document dated 17 August 2023. 4. In respect of the proceedings at first instance, the Tribunal had made the following orders concerning costs: (3) Within 14 days of the date of this decision, any party may file submissions and evidence in support, seeking an order in respect of the costs of the proceedings. (4) If any party files submissions in accordance with order (3), the other parties may file submissions in response, within a further 14 days. (5) Submissions in reply to submissions filed in accordance with order (4) may be filed within a further 14 days. (6) Any submissions filed in accordance with orders (3) and (4) must address whether the issue of costs can be determined on the written submissions and without a further hearing. (7) Subject to the parties' submissions, the Tribunal will determine any costs application made based on the papers lodged in the Tribunal. (8) If no submissions are filed in accordance with order (3), there will be no order in relation to the costs of the proceedings 1. It would appear no cost application was made to the Tribunal at first instance by the appellant (who was the applicant in the proceedings at first instance). Consequently order 8 applies- that is the Tribunal made no order for costs. As to her failure to make such an application as directed, the appellant said in her application for costs to the Appeal Panel: The Applicant contends when she spoke to NCAT's registry she was advised she didn't need to claim costs yet, despite the previous orders, because she was filing an Appeal and for it to be included in that. 1. As to the application for costs by the respondent in this appeal, it seeks an order that the appellant pay the respondent's costs of the appeal. 2. In addition to the costs applications, the appellant seeks an order (Non-publication Order) that 1. the Reasons, published on the Caselaw website, be removed from that site, or alternatively 2. her name be removed from the Reasons published on the Caselaw website. Consideration 1. We will deal with the applications under the following headings: 1. Dispensing with a hearing of the applications; 2. Costs; 3. Non-publication order. Dispensing with a hearing of the applications 1. The parties filed submissions in support of their respective applications. However, neither party filed submissions in reply. Further, neither party made submissions concerning whether an order should be made dispensing with a hearing in connection with the costs application, despite being directed to do so. As to the application concerning the Non-publication order, the appellant said a hearing was not needed, the respondent providing no submissions on this topic. 2. In circumstances where: 1. the parties have failed to avail themselves of all opportunities to make written submissions in reply or on the topic of whether a hearing of the applications for costs is required, 2. the appellant did not require a hearing in respect of the Non-publication order application and the respondent provided no submissions at all on this topic, 3. we can only proceed on the basis that they have nothing further to say in respect of the relevant applications. Consequently, we will make an order under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) dispensing with a further hearing, this being appropriate to avoid the parties incurring further costs. Costs 1. The first issue to determine in connection with the applications for costs is what costs rules apply to these proceedings. 2. Ordinarily, each party is to pay their own costs of proceedings in the Tribunal unless there are special circumstances warranting a departure: s 60(1)-(2) NCAT Act. However, in proceedings in the Consumer and Commercial Division of the Tribunal, where there is an amount claimed or in dispute greater than $30,000 it is not necessary to establish special circumstances: see r 38 of the Civil and Administrative Tribunal Rules (NSW) (Rules); Bonita v Shen [2016] NSWCATAP 159 (Bonita). 3. The proceedings at first instance involved an amount claimed or in dispute greater than $30,000. Consequently, the Tribunal has a general discretion to award costs in those proceedings. As to the exercise of discretion, the Appeal Panel in Bonita said at [59]- [64]: 59 In Thompson v Chapman [2016] NSCATAP 6, when dealing with r 38(2)(b), the Appeal Panel said at [69]: The starting point in exercising such a discretion is that the "usual order for costs" is that a successful party should be entitled to an order for costs in their favour. 60 The Appeal Panel in Thompson referred to the decisions of the High Court in Latoudis v Casey (1990) 170 CLR 534 and Oshlack v Richmond River Council (1998) 193 CLR 72. 61 In Latoudis McHugh J said at 567: An order for costs indemnifies the successful party in litigious proceedings in respect of liability for professional fees and out-of-pocket expenses reasonably incurred in connection with the litigation: Kelly v. Noumenon Pty Ltd (1988) 47 SASR 182, at p 184. The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory. Thus, in civil proceedings an order may, and usually will, be made even though the unsuccessful party has nearly succeeded or has acted reasonably in commencing the proceedings. 62 In Oshlack McHugh J said at 97: The expression the "usual order as to costs" embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party [96]. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation. 63 While McHugh J was in the minority in Oshlack, (which related to an individual seeking to remedy or restrain a breach of the Environmental Planning and Assessment Act, 1979 (NSW), being proceedings authorised by s 123 (1) of that Act), the majority in that case did not disagree with the general principle but rather whether, in the particular circumstances of the case, an order for costs should be made against the unsuccessful plaintiff, Oshlack. 64 On the other hand, where there is a general discretion to award costs there is no absolute rule that the successful party must receive the costs. In Thompson the Appeal Panel said at [71]-[72]: 71 Where there is a general discretion for costs there is no absolute rule that, absent disentitling conduct, a successful party is to be compensated by the unsuccessful party nor is there any rule that a successful party might not be ordered to bear the costs of an unsuccessful party: see Oshlack … per Gaudron and Gummow JJ at 88 and Kirby J at 121-123. 72 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. However it is clear from the authorities that factors that might influence whether the usual order for costs should apply and, if so, to what extent include: (1) Whether, by reason of the relative success of the parties on different issues and the time taken to determine those that an order for costs based on issues should be made; see for example Bostick Australia Pty Ltd v Liddiard (N0 2) [2009] NSWCA 304; and (2) Whether, by reason of the nature of the proceedings the usual rule should otherwise be displaced in whole or in part: see Oshlack … per Gaudron and Gummow JJ at 41-44. 1. If r 38 applies in respect of costs of the proceedings at first instance, r 38A of the Rules requires that r 38 be applied to the appeal proceedings. That is, it is not necessary for a party seeking costs to establish special circumstances if the amount claimed or in dispute in the appeal proceedings is greater than $30,000. 2. It is clear from the Reasons that the amount claimed or in dispute in the appeal was greater than $30,000. Consequently, r 38 also applies to costs of this appeal. 3. As noted above, the appellant asks the Appeal Panel to make an order for costs in her favour in respect of the proceedings at first instance as well is in respect of this appeal. This is despite her failure to comply with directions made by the Tribunal at first instance which would have permitted costs issues to be resolved there. 4. As set out above, order 8 made by the Tribunal at first instance provided there would be no order for costs if neither party applied for costs. 5. The appellant did not appeal this order. Nor has she sought an extension of time to apply to the Tribunal at first instance in connection with the orders made concerning applications for costs. While she asserts she was advised by the registry that it was unnecessary to make an application for costs because she had appealed, there is no evidence to support this submission. Further, and in any event, prima facie she has failed to comply with the orders made by the Tribunal in the proceedings at first instance. 6. In the absence of evidence and a proper hearing concerning costs of the proceedings at first instance and the relative success of the parties in those proceedings, which may include hearing an application to the Tribunal at first instance to extend time to make an application for costs, it is not appropriate that we deal with this matter as the Appeal Panel. Accordingly, we decline to do so. 7. The appellant may apply to the Tribunal at first instance if she wishes to seek costs of those proceedings. In saying so, we would encourage the parties to have some discussions as to whether such a course is necessary and whether an agreement can be reached in respect of such costs. 8. As to the costs of the appeal, as noted above, the appellant has had very limited success. 9. In its application, the respondent says success on the appeal should be evaluated on an issues basis. Reference was made to the decision of the Supreme Court in Aerolink Air Services Pty Limited v Bankstown Airport Ltd (No. 2) [2019} NSWSC 183 as "authority for the proposition that if the Plaintiff only wins a minor part of its claim, the Respondent is entitled to the majority of their costs". Consequently, having regard to the appellant's success, the respondent says "it is prima facie entitled to its costs". 10. The respondent also relies on an affidavit of Mithrah Baskaran affirmed 15 August 2023 and an offer of compromise annexed to that affidavit. However, the offer, which was inclusive of costs, was not bettered in the sense that it contemplated the total dismissal of the appeal. As noted above, the appellant was successful, although only to a very minor extent when considered against the orders sought and the issues raised. 11. There is ample authority for the proposition that, even though a party was successful, costs can be awarded on the basis of issues raised and relative success: see eg Bostick Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304. 12. It is not necessary to repeat the issues raised and the very limited success which the appellant had in these appeal proceedings. It is sufficient to refer to the Reasons recording what was in dispute and the issue on which the appellant succeeded. 13. Taking account of this success, or lack thereof, in our view this is a case where there should be a departure from the usual order that a successful party should be entitled to recover their costs. The respondent should be entitled to an order for costs in its favour. 14. However, as the respondent was not totally successful, a deduction should be made by way of a percentage of the total cost. This will avoid the need to complicate any assessment process. That percentage reduction should be 5%. 15. Accordingly, we will make an order that the appellant pay 95% of the respondent's costs of the appeal proceedings, such costs to be as agreed or assessed on an ordinary basis. 16. We make no order in connection with the appellant's application for costs of the proceedings at first instance for the reasons stated above, other than to permit an application to the Tribunal at first instance. Non-publication order 1. The appellant says that the Reasons should be removed from the Caselaw website or her name redacted for the following reasons because: 1. She did not consent to having her personal identifying details visible to the public on the Caselaw website due to privacy reasons. 2. She has a name which is "extremely unique and no one else in the world has this name but her". 3. The suburb location is also a unique name. 4. These matters make "her personal details public for all to view at any time which she does not and did not consent to". 5. Given her extremely senior career, the appellant "cannot have her personal information details public for all to see. 1. In making these submissions the appellant says "she was not aware that this was something that would happen and did not consent to such". 2. In our view the application should be dismissed. Our reasons are as follows. 3. In accordance with s 49(1) of the NCAT Act, a hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise. This is a reflection of the principle of open justice. 4. In John Fairfax Publications Pty Ltd v Ryde Local Council [2005] NSWCA 101; (2005) 62 NSWLR 512 (John Fairfax), Spigelman CJ explained the principle of open justice and its purpose in the following terms (at [60]-[64]): 60 The principle of open justice is a fundamental axiom of the Australian legal system. It informs and energises numerous areas of the law as I have sought to show elsewhere. (See Spigelman "Seen to be Done: The Principle of Open Justice" (2000) 74 ALJ 290, 378.) It is appropriate for the court to have regard to the principle when determining applications for access under any express or implied power to grant access. In this regard it is, however, pertinent to recognise that the principle has purposes related to the operation of the legal system. Its purposes do not extend to encompass issues of freedom of speech and freedom of the press. 61 The purpose of the principle of open justice was well stated by Jeremy Bentham who said: "Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial." (Quoted in Garth Nettheim, "The Principle of Open Justice" (1986) 8 U Tas L R 25, 28 from Bowring (ed), Works of Jeremy Bentham (1843) Vol 4 at 316-317.) 62 To similar effect are the observations of Lord Diplock in Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 450: "If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice." 63 Finally, Sir Harry Gibbs observed in Russell v Russell (1976) 134 CLR 495 at 520: " … [T]he proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts." 64 Many similar observations could be quoted. 1. In Forest v Suzanne [2022] NSWCATAP 188, the Appeal Panel said at [30]-[34]: 30 In civil proceedings such as those brought by the appellant, the principle of open justice is a centrally important factor. This long standing principle of the common law applies in the Tribunal as it does in courts. In general terms, the principle requires hearings to be conducted in public and information and evidence to be communicated publicly to those present at the hearing. It also requires that nothing be done to discourage fair and accurate reports of proceedings conducted in open hearing, which includes reporting the names of the parties and the evidence given during the proceedings. The open justice principle is reflected in s 49 of the NCAT Act, which, with limited exceptions requires Tribunal hearings to be conducted in public. 31 As stated by the Appeal Panel in Kostov v Ecclesia Housing Limited (No 3) [2018] NSWCATAP 221 (Kostov No 3) at [10]: In New South Wales there is a system of open justice. From time to time reports of decisions of courts and tribunals reveal circumstances pertaining to parties in proceedings of a personal nature, and some of which deal with a whole range of difficult circumstances. Whilst it is unfortunate that details of this kind are revealed in this way, this is a necessary concomitant of open justice. 32 The Appeal Panel in Kostov No 3 went on to state at [11]: There are many cases in this Tribunal where non-publication orders have been made under section 64 of the Act, but they are principally directed to ensuring confidentiality with respect to disciplinary proceedings taken against health practitioners or legal practitioners and concern the names and details of persons who are their patients or clients as well as the families of those patients and clients. It is rare indeed that the name of a practitioner against whom disciplinary proceedings are taken will be suppressed. See for example, Health Care Complaint Commission v Vo [2014] NSWCATOD 127. Of course, the circumstances of such proceedings are significantly different from those which apply to these proceedings. 33 I note that as the case in the appellant's proceedings, Kostov (No 3) concerned a dispute between a landlord and a tenant. 34 While generally speaking the prospect of damage to reputation or embarrassment affecting a participant in proceedings does not provide sufficient grounds for an order under s 64, as stated by the Appeal Panel of the Administrative Decisions Tribunal in State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69 at [81] "there may be unusual circumstances where this is the principal consideration underlying an order." 1. There is no doubt the Tribunal can make orders concerning the publication of information about proceedings, including the names of parties and personal information provided to the Tribunal in proceedings. However, a proper reason to do so is required having regard to the principle of open justice and the Tribunal must be satisfied it is "desirable" to do so: see s 64 of the NCAT Act. 2. The discretion to make such an order is not simply dependant on an applicant making a request. In this regard, unlike proceedings in the Guardianship Division and other circumstances prescribed in s 65 of the NCAT Act, the publication of the name of a party or witness in proceedings in the Consumer and Commercial Division (CC Division) is not prohibited. This is also the position in proceedings by way of appeal to the Appeal Panel from a decision of the CC Division. 3. In proceedings in the CC Division, consent from a party is not required for the Tribunal to publish a decision on Caselaw, including the parties' names. Having invoked the jurisdiction of the Tribunal, the principle of open justice permits publication unless there is good reason not to. 4. In the present case, the desirability of making an order under s 64 involves an exercise in balancing the need to protect identified personal information against the principal of open justice. 5. The appellant identifies the relevant information which she says should remain private as her personal details which will be visible on the Caselaw website being her unique name and the unique name of the suburb in which she lives. She then says: Given her extremely senior career the applicant cannot have her personal information and details public for all to see. 1. Having commenced proceedings in the Tribunal, which proceeded by way of an open hearing both in the CC Division and before the Appeal Panel, it seems to us that: 1. the fact of these proceedings; 2. the identification of the appellant as a party to the proceedings; and/or 3. the identification of a suburb in which residential building works the subject of this dispute have been carried out, 4. could not be said to be confidential information or information of a type otherwise requiring protection in the present circumstances. 1. As to the appellant's career, again this does not appear to be confidential information and, in any event, was not the subject of any commentary or statement in our reasons for decision. 2. Finally, there is no evidence provided to us that would otherwise make an order under s 64 of the NCAT Act desirable. Orders 1. The Appeal Panel makes the following orders: 1. The hearing of the application for costs and the application for a non-publication order is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013. 2. The appellant is to pay 95% of the respondent's costs of the appeal proceedings, such costs to be as agreed or assessed on an ordinary basis. 3. Any application in connection with costs of the proceedings at first instance is to be first brought in the Consumer and Commercial Division. 4. The application by the appellant to have our reasons for decision bearing medium neutral citation Treadgold-Svir v Dynamik Constructions Pty Ltd [2023] NSWCATAP 216 redacted or otherwise removed from the Caselaw website is refused. ********** 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: 11 October 2023