BCA Constructions Pty Ltd v Arsovski [2024] NSWCATAP 31

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BCA Constructions Pty Ltd v Arsovski [2024] NSWCATAP 31 Hearing dates: 25 July 2023 Date of orders: 01 March 2024 Decision date: 01 March 2024 Jurisdiction: Appeal Panel Before: G Sarginson, Senior Member D Robertson, Senior Member Decision: 1. Appeal allowed in part. 2. Order 2 made by the Tribunal on 28 February 2023 in Matter HB 21/29512 is set aside and there is no order as to costs in those proceedings. 3. The appellant's application for leave to rely on the affidavit of Stephen Charles Dawson dated 23 March 2023 is refused. 4. The appeal is otherwise dismissed. 5. If there is a costs application in the Appeal Panel proceedings, it is to be made as follows: (a) A party seeking costs (costs applicant) is to file with the Appeal Panel and serve on the other party (costs respondent) submissions not exceeding five pages and any evidence in support within 14 days of the date of this decision. (b) The costs respondent is to file with the Appeal Panel and serve on the costs applicant submissions in response, not exceeding five pages, and any evidence within 28 days of the date of this decision. (c) The costs applicant is to file with the Appeal Panel and serve on the costs respondent any submissions in reply, not exceeding three pages, within 35 days of the date of this decision. (d) Submissions filed pursuant to this order must indicate whether the filing party consents to the costs decision being determined without a further oral hearing and if not, why not. (e) Either party may apply to the Appeal Panel in writing to vary the procedural timetable for the filing and serving of costs submissions and evidence. Such application must be made no later than the applicable date for compliance with the timetable. Catchwords: COSTS---Proceedings at first instance settled prior to hearing by consent orders with issue of costs reserved---r 38 Civil and Administrative Tribunal Rules 2014---Whether costs order should be made in favour of a party---Applicable principles Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Cases Cited: Ballina Shire Council v Leadbetter [2023] NSWLEC 12 Bell Solar Pty Limited t/as Sunboost v Anderson [2021] NSWCATAP 278 Bellgrove v Eldridge (1954) 90 CLR 613; [1954] HCA 36 Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 BNK Café Restaurant Pty Ltd v The Owners-Strata Plan No 33676 [2023] NSWCATAP 161 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Bulloch v Linden Building Services Pty Ltd t/as Linden Constructions [2019] NSWCATAP 42 C&V Engineering Services Pty Ltd v Metropolitan Demolitions Pty Ltd (No 2) [2023] NSWCA 240 Calderbank v Calderbank [1975] 3 All ER 333 Campara v Australian Islamic Society of Bosnia Herzegovinia Inc [2020] NSWSC 1739 Collins v Urban [2014] NSWCATAP 17 Dimitropoulos v Capital Constructions Pty Ltd; Capital Constructions Pty Ltd v Dimitropoulos [2018] NSWCATAP 100 Garofali v Moshkovich [2021] NSWCATAP 242 Hoare v Taylormade Residential Pty Ltd [2022] NSWSC 1359 Hogan v Trustees of the Roman Catholic Church (No 2) [2006] NSWSC 74 House v The King (1936) 55 CLR 499; [1936] HCA 40 Hunter Development Corporation v Save Our Rail NSW Incorporated (No 2) [2016] NSWCA 375 Jain v Dr N Kalokerinos Pty Ltd [2023] NSWCATAP 141 Jandson Pty Ltd v James [2021] NSWCATAP 274 Khanna v Bond Realty Pty Ltd [2019] NSWCA 128 Kiama Council v Grant [2006] NSWLEC 96 Knox v Bollen; Bollen v Knox [2018] NSWCATAP 106 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457; [1933] HCA 25 Muhibbah Engineering (M) BHD & Anor v Trust Company Ltd & Anor [2009] NSWCA 205 Nadalio v Eagleton [2021] NSWCATAP 232 New South Wales Land and Housing v Orr [2019] NSWCA 231 Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84 One.Tel Ltd v Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Price v Price [2020] NSWCA 312 Re: Minister for Immigration & Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Shellharbour City Council v Minister for Local Government [2017] NSWCA 256 Sunrise Pools Australia Pty Ltd v Gregory [2018] NSWCATAP 232 The Owners-Strata Plan No 5319 v Price [2020] NSWCATAP 245 The Owners-Strata Plan No 6307 v Kinsella [2022] NSWCATAP 184 TNT Building Trades Pty Ltd v Baker [2023] NSWCATAP 178 Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 at Wang v Cai (No 2) [2021] NSWSC 1268 Texts Cited: None cited Category: Principal judgment Parties: BCA Constructions Pty Ltd (Appellant) Peter Arsovski and Tracy Arsovski (Respondents) Representation: Counsel: P Rodionoff (Appellant) A Girgis (Respondents)