Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Orell v Clas Concrete & Constructions Pty Ltd (No 2) [2024] NSWCATAP 261 Hearing dates: On the papers Date of orders: 19 December 2024 Decision date: 19 December 2024 Jurisdiction: Appeal Panel Before: G Blake AM SC, Principal Member E Bishop SC, Senior Member Decision: (1) A hearing of the application of the respondent in relation to the costs of the appeal lodged on 20 November 2024 is dispensed with. (2) The respondent is to pay the costs of the appeal of the appellant excluding the costs of and incidental to the documents lodged without the leave of the Appeal Panel on 13 December 2024 as agreed or assessed in accordance with the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: COSTS – application for costs by the respondent –application dismissed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 50, 81 Civil and Administrative Tribunal Rules 2014 (NSW), r 38A Legal Profession Uniform Law Application Act 2014 (NSW) Cases Cited: Orell v Clas Concrete & Constructions Pty Ltd [2024] NSWCATAP 220 Timilty Constructions Pty Ltd v Culina (No 2) [2023] NSWCATAP 148 Texts Cited: None cited Category: Costs Parties: Fernando Orell (Appellant) Clas Concrete & Constructions Pty Ltd (Respondent) Representation: Counsel: M Fraser (Appellant) Solicitors: Maxwell Berghouse & Ives Solicitors (Appellant) Project Lawyers (Respondent) File Number(s): 2024/00301229 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 24 July 2024 Before: R Titterton OAM, Senior Member File Number(s): 2023/00395951 (formerly HB 23/21318) REASONS FOR DECISION Overview 1. On 5 November 2024, we made a decision that the appeal should be allowed, order 1 of the 24 July 2024 orders should be set aside, certain questions should be considered by the Consumer and Commercial Division of the Tribunal, and Clas should pay Mr Orell's costs of the appeal (the costs order). We also made procedural orders for the lodgement and service by the parties of evidence and submissions including on the question of whether an oral hearing may be dispensing with if a party sought to vary the costs order whereupon the costs order would be set aside: Orell v Clas Concrete & Constructions Pty Ltd [2024] NSWCATAP 220 (the Appeal Decision). 2. On 20 November 2024, Clas applied to vary the costs order to seek the following order (the Clas costs application): "Costs are reserved pending the outcome of the matter on remittance." 1. We have decided that the Clas costs application should be dismissed, and that an order should be made in the same terms as the costs order excluding the costs of and incidental to the documents lodged without the leave of the Appeal Panel on 13 December 2024. 2. These reasons for decision should be read with, and use the same abbreviations as in, the Appeal Decision. The history of the appeal 1. The history of the appeal up to 5 November 2024 is set out in the Appeal Decision at [15]-[28]. 2. On 20 November 2024, Clas lodged its submissions on costs as part of the Clas costs application (the Clas costs submissions). 3. On 21 November 2024, Mr Orell lodged his submissions on costs (the Orell costs submissions). 4. On 11 December 2024, Clas lodged its submissions in reply (the Clas costs submissions in reply). 5. On 13 December 2024, Mr Orell lodged his reply submissions on costs (the Orell costs submissions in reply). 6. On 13 December 2024 at 1.10 PM, James Gilronan, the solicitor for Clas, sent an email to the Appeal Registry, which was copied to four addressees of Mr Orell's solicitors, responding to the Orell costs submissions (the 13 December 2024 at 1.10 PM Gilronan email). The issues 1. The following issues arise for determination: 1. issue 1: whether a hearing of the Clas costs application should be dispensed with; 2. issue 2: whether the documents lodged without leave should be taken into account on the Clas costs application; 3. issue 3: the Clas costs application. Issue 1: whether a hearing of the Clas costs application should be dispensed with 1. Clas has not made any submission as to whether a hearing of the Clas costs application should be dispensed with. Mr Orell does not consent to a hearing of the Clas costs application being dispensed with if "there are further issues raised by" Clas and otherwise consents to a hearing of the Clas costs application being dispensed with. 2. We are satisfied that that the issues for determination in relation to the Clas costs application can be adequately determined in the absence of the parties by considering their submissions. Accordingly, we have decided pursuant to s 50(2) of the NCAT Act to make an order dispensing with a hearing in relation to the Clas costs application. Issue 2: whether the documents lodged without leave should be taken into account on the Clas costs application 1. As the Orell costs submissions in reply and the 13 December 2024 at 1.10 PM Gilronan email were lodged without leave, we have decided not to take them into account on the Clas costs application. Issue 3: the Clas costs application Introduction 1. We note that neither Clas nor Mr Orell challenges our finding in the Appeal Decision at [71] that r 38A(2) of the NCAT Rules is applicable to this appeal. 2. Before considering this issue, it is appropriate to summarise the submissions of the parties. The Clas costs submissions 1. In the Clas costs submissions, Clas has made the following submissions: 1. the result of the Appeal is more or less an extended stay of judgment pending final determination by the Tribunal; 2. although the Appeal was allowed, Mr Orell was unsuccessful having regard to the orders made and the likely outcome of the matter upon being remitted; 3. rule 38 of the NCAT Rules does not require the Tribunal to award costs where it would not be appropriate to do so. It should be for Mr Orell to discharge the onus of establishing an entitlement to costs; 4. Mr Orell in the Submissions dated 18 September 2024 at [45] submitted that "The Respondent could have consented to the orders sought by the Appellant…. Instead of which it opposed the appellant's application for a stay at the first directions hearing and actively opposed the appeal." Had it consented to the orders sought by Mr Orell it would have entirely compromised its position and would not have achieved a result comparable to the orders made by the Appeal Panel, which are largely in its favour, despite the fact that the original judgment sum was ordered to be released back to Mr Orell until the matter is finally decided; 5. it referred to Timilty Constructions Pty Ltd v Culina (No 2) [2023] NSWCATAP 148 (Timilty Constructions) at [39] where the Appeal Panel made no order as to costs of the appeal where each party had had a measure of success in the appeal; 6. under the heading "Prospects on remittance", the Appeal can be seen as merely an interlocutory process that has delayed the final resolution of the dispute and granted the parties to put on further submissions and evidence. The cogent, plausible likelihood that it will obtain a substantial portion of the moneys invoiced to Mr Orell would make an order for costs in his favour unreasonable, premature and unwarranted; 7. the failure of the Senior Member in providing the parties procedural fairness was not its fault. It should not be penalised by the Senior Member's conduct by being required to pay Mr Orell's costs of the Appeal, especially when he is still faced with the very significant prospects of being ordered to pay most (if not all) of the original judgment sum to it upon the matter being remitted. The Orell costs submissions 1. In the Orell costs submissions, Mr Orell has submitted that a costs order should be made in the same terms as the costs order. It is unnecessary to summarise these submissions. The Clas costs submissions in reply 1. In the Clas costs submissions in reply, Clas has in substance reiterated the Clas costs submissions. It is unnecessary to summarise these submissions. Consideration 1. We disagree with the analysis of Clas of the Appeal Decision in the Clas costs submissions for the following reasons: 1. the effect of the Appeal Decision is not more or less an extended stay of the 24 July 2024 money order pending final determination by the Tribunal. Rather the 24 July 2024 money order was set aside; 2. while Mr Orell was unsuccessful in obtaining the orders he sought in the notice of appeal, he did in the notice of appeal raise the issues of whether the Senior Member constructively failed to exercise the jurisdiction of the Tribunal or alternatively failed to provide adequate reasons for his determination. We found in the Appeal Decision at [58]-[60] that the Senior Member constructively failed to exercise the jurisdiction of the Tribunal or alternatively failed to provide adequate reasons for his determination. Clas in its reply to appeal could have conceded that the appeal should be allowed on the basis that the Senior Member had constructively failed to exercise the jurisdiction of the Tribunal or alternatively failed to provide adequate reasons for his determination, and contended that the appropriate relief was an order pursuant to s 81(1)(e) of the NCAT Act for consideration of the questions not determined or for which inadequate reasons had been provided by the Tribunal as originally or differently constituted; 3. we do not accept that the effect of the Appeal Decision is that Clas is entitled to raise its claim for a quantum meruit in the proceedings under appeal. Orders 4(a) and (b) of the Appeal Decision makes clear that this issue will need to be determined as part of the consideration of the remitted questions; 4. we have not found that Timilty Constructions at [39] is of any relevance. Not only are costs decisions of an appeal dependant on the particular facts before the Appeal Panel, but also a different order was made in the referenced decision from the order being sought by Clas; 5. we do not accept that the fact that the Senior Member had constructively failed to exercise the jurisdiction of the Tribunal or alternatively failed to provide adequate reasons for his determination absolves Clas from liability for the costs of the appeal. As we have indicated Clas could have in its reply to appeal conceded this error and contended that the appropriate relief was an order pursuant to s 81(1)(e) of the NCAT Act. 1. It follows that we have decided to dismiss the Clas costs application, and make an order in the same terms as order 6 of the Appeal Decision excluding the costs of and incidental to the Orell costs submissions in reply and the 13 December 2024 at 1.10 PM Gilronan email. Orders 1. We make the following orders: 1. A hearing of the application of the respondent in relation to the costs of the appeal lodged on 20 November 2024 is dispensed with. 2. The respondent is to pay the costs of the appeal of the appellant excluding the costs of and incidental to the documents lodged without the leave of the Appeal Panel on 13 December 2024 as agreed or assessed in accordance with the Legal Profession Uniform Law Application Act 2014 (NSW). ********** 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: 19 December 2024