Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Deutsch Services Pty Ltd v Apex Bespoke Building Pty Ltd (No 2) [2025] NSWCATAP 23 Hearing dates: On the papers Date of orders: 03 February 2025 Decision date: 03 February 2025 Jurisdiction: Appeal Panel Before: G Blake AM SC, Principal Member S Higgins, Senior Member Decision: (1) Pursuant to section 50 of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing of Apex Bespoke Building Pty Ltd's costs application is dispensed with. (2) Deutsch Services Pty Ltd is to pay Apex Bespoke Building Pty Ltd's costs of the appeal, on an ordinary basis, as agreed or assessed. Catchwords: COSTS – home building – unsuccessful application for leave to appeal from first instance directions order – respondent made a submitting appearance reserving its position solely as to costs Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: BNY Constructions Pty Ltd v Allen [2017] NSWCATAP 186 Texts Cited: nil Category: Costs Parties: Deutsch Services Pty Ltd (Appellant) Apex Bespoke Building Pty Ltd (Respondent) Representation: Solicitors: Deutsch Partners (Appellant) Carmody Lawyers (Respondent) File Number(s): 2024/00210023 Publication restriction: nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: n/a Date of Decision: 31 May 2024 Before: G Ellis SC, Senior Member File Number(s): 2024/00084453 Reasons for decision 1. On 3 October 2024 we refused the appellant's (Deutsch Services Pty Ltd) application for leave to appeal the directions order made by the Tribunal, in the Consumer and Commercial Division, on 31 May 2024, concerning the home building proceedings of the respondent (Apex Bespoke Building Pty Ltd) in 2024/00084453: see Deutsch Services Pty Ltd v Apex Bespoke Building Pty Ltd [2024] NSWCATAP 193) (Appeal decision). On the same day, we made the following orders as to the costs of the appeal: (2) The issue of costs of the appeal is to be determined as follows: (a) Apex Bespoke Pty Ltd to file with the Appeal Panel and serve on Deutsch Services Pty Ltd any costs submissions within 14 days from the date of this decision. (b) Deutsch Services Pty Ltd to file with the Appeal Panel and serve on the Apex Bespoke Pty Ltd any costs submissions within 28 days from the date of this decision. (c) Apex Bespoke Pty Ltd to file with the Appeal Panel and serve on Deutsch Services Pty Ltd costs submissions in reply by 35 days from the date of this decision. (d) The costs submissions of the parties are to identify whether an oral hearing on costs is sought, and if so, why. (e) Subject to consideration of the costs submissions of the parties the Appeal Panel may determine the issue of costs on the papers and without a further oral hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) 1. In compliance with the costs order, on 17 October 2024, Apex Bespoke Building Pty Ltd, provided its written submissions on costs and consented to the matter being determined on the papers. In summary, Apex Bespoke Building Pty Ltd acknowledged that its costs of the appeal were modest. Nevertheless, it submitted that the appeal lodged by Deutsch Services Pty Ltd did cause it to incur cost, including fees for legal advice and counsel's preparation and appearance at the call-over of the appeal on 26 June 2024 2. Deutsch Services Pty Ltd has not provided any submissions in reply. As noted in the Appeal decision, at [15], on 26 June 2024, at the initial call-over of Deutsch Services Pty Ltd appeal, the Appeal Panel made an order dispencing with a hearing of that application under section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 3. We are satisfied that the issues for determination in the costs application of Apex Bespoke Building Pty Ltd can also be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal without a hearing and make an order, under section 50(2) of the NCAT Act, dispensing with a hearing on the issue of costs of the application for leave to appeal. Relevant law 1. Section 45(1) of the NCAT Act provides that a party to proceedings before the Tribunal is not entitled to be represented by any person, unless granted leave by the Tribunal. In this case, on 26 June 2024, the Appeal Panel granted Deutsch Services Pty Ltd and Apex Bespoke Pty Ltd leave to be legally represented. 2. In proceedings (including appeals) before the Tribunal, the usual rule is that each party to proceedings is to pay the party's own costs: NCAT Act section 60(1). However, the Tribunal may award costs if and only if it is satisfied that there are special circumstances warranting an award of costs: NCAT Act section 60(2). Section 60(3) sets out the matters the Tribunal may have regard to in determining whther there are special circumstances. 3. However, this usual rule in section 60 of the NCAT Act is displaced: 1. in the case of proceedings in the Consumer and Commercial Division where the amount claimed or is in dispute is more than $30,000: Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) rule 38(2)(b); and 2. in the case of an internal appeal from a decision of the Tribunal in the Consumer and Commercial Division where the amount claimed or is in dispute is more than $30,000: NCAT Rules rule 38A. 1. In such cases, the Tribunal may award costs in the absence of special circumstances. The awarding of costs in absence of special cirmstances is a broad discretion, the relevant principles being those cited with approval by the Appeal Panel in BNY Constructions Pty Ltd v Allen [2017] NSWCATAP 186 at [67] as follows: (1) the starting point is that a successful party should be entitled to an order for costs in his favour; (2) an award of costs is by way of an indemnity and not as punishment; (3) there is no absolute rule that, absent disentitling conduct, a successful party is to be compensated by the unsuccessful party; (4) the factors to be considered are not to be confined as to do so would constrain the general discretion; (5) the relative success of the parties on different issues and the time taken to determine them may be relevant; (6) the nature of the proceedings is relevant; (7) the proper exercise of the discretion requires a decision maker to do justice between the parties and to exercise the discretion having regard to relevant considerations and in a manner which is not arbitrary and capricious. Consideration 1. As we have noted above, Deutsch Services Pty Ltd and Apex Bespoke Building Pty Ltd were both granted leave to be legally represented and the costs claimed by Apex Bespoke Building Pty Ltd are those incurred by being legally represented in the appeal. 2. There is no dispute that the home building claim of Apex Bespoke Building Pty Ltd lodged in the Consumer and Commercial Division well exceeded $30,000; see Appeal decision at [7]. Hence, we find that, in this case, the cost rules in rule 38 and 38A of the NCAT Rules apply. 3. As noted in the Appeal decision, we found that Deutsch Servises Pty Ltd had failed to establish any of its grounds for the grant of leave to appeal: NCAT Act section 80(2)(a). Hence, its appeal was entirely unsuccessful and lacked merit. 4. While, at the call-over on 26 June 2024, Apex Bespoke Building Pty Ltd made a submitting appearance in the appleal it did reserve its position as to its costs in the appeal. We accept the submissions of counsel for Apex Bespoke Building Pty Ltd that it has incurred costs relating to the appeal. 5. Finally, in the absence of any written submissions from Deutsch Services Pty Ltd, or any evidence of any disentitling conduct, we find that it is appropriate to make a costs order in the terms sought by Apex Bsepoke Building Pty Ltd. Orders We make the following orders: 1. Pursuant to section 50 of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing of Apex Bespoke Building Pty Ltd's costs application is dispensed with. 2. Deutsch Services Pty Ltd is to pay Apex Bespoke Building Pty Ltd's costs of the appeal, on an ordinary basis, as agreed or assessed. ********** 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: 03 February 2025