Rehman v F & F Smart Homes Pty Ltd [2024] NSWCATAP 9

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rehman v F & F Smart Homes Pty Ltd [2024] NSWCATAP 9 Hearing dates: 18 December 2023 Date of orders: 18 January 2024 Decision date: 18 January 2024 Jurisdiction: Appeal Panel Before: D Charles, Senior Member D Fairlie, Senior Member Decision: 1. Application for extension of time to lodge the appeal to 13 September 2023, is granted. 2. Appeal allowed. 3. Set aside order 2 made by the Tribunal on 14 April 2023 in the proceeding constituted by file no. HB 22/00516. 4. In substitution for the Tribunal's order 2 in the said proceeding, order that F & F Smart Homes Pty Ltd. is to pay Abdul Nateen Rehman's costs of the proceeding on the ordinary basis, as agreed or as assessed in accordance with the applicable costs' assessment legislation, other than the costs of the hearing on 28 June 2022, in respect of which there be no order as to costs (with the intent that each party is to bear its or his own costs of the proceeding on that day). 5. Subject to order 6, F & F Smart Homes Pty Ltd is to pay Abdul Nateen Rehman's costs of the appeal on the ordinary basis, as agreed or as assessed in accordance with the applicable costs' assessment legislation. 6. Should either party seek a different appeal costs' order, the following directions apply: a. The applicant for costs (costs' applicant) must file and serve any application with its written submissions on that issue only (no more than 5 pages) within 14 days of the date of these orders. b. Upon filing an application in accordance with order 6(a), order 5 will cease to have effect. c. A costs' respondent must file and serve any written submissions in response to the issue of costs only (no more than 5 pages) within a further 14 days of receipt of the costs' applicant's submissions. d. A costs' applicant may file and serve a written submission (no more than 3 pages) strictly in reply to a costs' respondent's submission within a further 7 days of receipt of the costs' respondent's submissions. In any such submissions the parties are to address the matter of whether pursuant to the provisions of the Civil and Administrative e. In any such submissions the parties are to address the matter of whether pursuant to the provisions of the Civil and Administrative Tribunal Act 2013 NSW, s 50(2), the Appeal Panel should dispense with a hearing on the issue of the costs of the appeal, so that the issue is decided on the papers lodged with the Appeal Panel and with appearances of the parties not required. Catchwords: COSTS – appeal – errors of law in exercise of the Tribunal's discretion under r 38 – setting aside of no order as to costs and substituting a costs' order. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Cases Cited: Abdi v Abdi (no 2) [2022] NSWSC 582 Bright Build Pty Ltd v The Owners – Strata Plan No 94514 [2021] NSWCATAP 163 Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd (No 3) [2021] NSWSC 1537 Calderbank v Calderbank [1976] Fam Law 93; 3 All ER 333; 3 WLR 586 Diamond World Jewellers Pty Ltd v Catlin Australia Pty Ltd (No 2) (2021) NSWSC 1540 Hawkesbury District Health Service Limited v Chaker (No 2) [2011] NSWCA 30 House v The King (1936) 55 CLR 499 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Jones v Bradley (No 2) [2003] NSWCA 258 Jones v Sutton (No 2) [2005] NSWCA 203 Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 Miwa Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344 Nguyen v Perpetual Trustee Co Ltd; Perpetual Trustee Co Ltd v Nguyen [2015] NSWCATAP 264 Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [24] Nu Line Construction Group Pty Ltd v Fowler [2012] NSWSC 816 Old v McInnes and Hodgkinson [2011] NSWCA 410 Oshlack Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Rekrut and Scott v Champion Home Sales Pty Ltd [2018] NSWCATAP 97 Rickard Constructions v Rickard Hails Moretti [2005] NSWSC 481 Roberts v Rodier [2006] NSWSC 1084 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 Thompson v Chapman [2016] NSWCATAP 6 Whitney v Dream Developments Pty Ltd [2013] NSWCA 188; 84 NSWLR 311 Williams v Lewer [1974] 2 NSWLR 91 Wright v Foresight Constructions Pty Ltd [2011] NSWCA 327 Texts Cited: None Cited Category: Principal judgment Parties: Abdul Mateen Rehman, Appellant F & F Smart Homes Pty Ltd, Respondent Representation: Counsel: Appellant: S Jayasuriya Respondent: W Calokerinos