Duplex Australia Pty Limited v Hathaway [2024] NSWCATAP 228

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Duplex Australia Pty Limited v Hathaway [2024] NSWCATAP 228 Hearing dates: 30 September 2024 Date of orders: 13 November 2024 Decision date: 13 November 2024 Jurisdiction: Appeal Panel Before: P H Molony, Senior Member D G Fairlie, Senior Member Decision: (1) Leave to appeal is refused and the appeal is dismissed except in relation to the costs order numbered (2) made in Tribunal Proceedings 2023/003960620, which order is set aside and in lieu thereof the following orders made: (a) Subject to order 1(b) below, Duplex Australia Pty Ltd is to pay Jade Hathaway's and Jacinta Harrison's costs of Tribunal Proceedings 2023/003960629 on the ordinary basis as agreed or assessed. (b) Should Duplex Australia Pty Limited seek a different costs order in Tribunal Proceedings 2023/003960620, the directions set out in order 4 below apply. (2) Subject to order 3 below, Duplex Australia Pty Ltd is to pay Jade Hathaway's and Jacinta Harrison's costs of the appeal on the ordinary basis as agreed or assessed. (3) Should either party seek a different costs order in the appeal the directions set out in order 4 below apply. (4) In respect of any such application for costs: (a) The party applying for costs (the costs' applicant) must file and serve its written submissions on those issues only (no more than 3 pages) within 14 days of the date of these orders. (b) The party from whom an order for costs is sought (the costs' respondent) must file and serve any written submissions in reply (no more than 3 pages) within a further 14 days of receipt of the costs' applicant's submissions. (c) The costs' applicant may file and serve a written submission (no more than 3 pages) in response to the costs' respondent's submissions within a further 7 days of receipt of the costs' respondent's submissions. (d) In any such submissions the parties are to address whether the Appeal Panel should dispense with a hearing on the issue of the costs of the appeal and or of the costs in Tribunal Proceedings 2023/0039062, so that the issues can be decided on the papers lodged with the Appeal Panel without a hearing. Catchwords: APPEALS – sections 18C, 18D and 18E(4) in the Home Building Act 1989 considered – the role of building experts in Tribunal proceedings Legislation Cited: Civil and Administrative Tribunal Act 2013 NSW Home Building Act 1989 NSW Home Building Regulation NSW 2014 NCAT Procedural Direction 3 – Expert Witnesses Effective date - 28 February 2018 Cases Cited: Ashton v Stevenson; Stevenson v Ashton [2018] NSW CATCD 25 and NSWCATAP 233 Australian Postal Corporation v Williams [2016] NSWCATAP 168 Collector of Customs v Agfa Gevert [1996] HCA 36, 186 CLR 389 Collins v Urban [2014] NSWCATAP 17 Ghosh v Medical Council of New South Wales [2020] NSWCA 122 GMI Construction Pty limited v Keshavarz [2024] NSWCATAP 68 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 National Justice Compania Naviera SA V Prudential Assurance Co. Ltd [1993] 2 Lloyd's Reports 68 Pholi v Warne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Reisner v Blatt [2004] NSWCA 22 Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 Vella v Mir (No.2) [2019] NSWCATAP 240 Texts Cited: Civil Trials Bench Book - Judicial Commission of New South Wales National Construction Code – Australian Building Codes Board Category: Principal judgment Parties: Duplex Australia Pty Limited (Appellant) Jade Hathaway (First Respondent) Jacinta Harrison (Second Respondent) Representation: Counsel: I Chatterjee (First and Second Respondents)