Fawzi El-Saeidy v New South Wales Land & Housing Corporation [2011] NSWSC 1247

Supreme Court New South Wales

Medium Neutral Citation: Fawzi El-Saeidy v New South Wales Land & Housing Corporation [2011] NSWSC 1247 Hearing dates: 22 September 2011 Decision date: 24 October 2011 Jurisdiction: Common Law Before: Harrison AsJ Decision: The defendant is to pay the plaintiff's costs of the proceedings Catchwords: COSTS - whether costs should follow the event - s 120A Residential Tenancies Act 1987 - whether Consumer, Trader & Tenancy Tribunal could have enforced rights of plaintiff - offers of settlement - whether plaintiff achieved better result than offers to settle - plaintiff successful on main issues in dispute - costs to follow the event Legislation Cited: Civil Procedure Act 2005 Residential Tenancies Act 1987 Residential Tenancies Act 2010 Residential Tenancies Regulation 2006 Uniform Civil Procedure Rules 2005 Category: Costs Parties: Fawzi El-Saeidy (Plaintiff) New South Wales Land and Housing Corporation (Defendant) Representation: D Hawkins (Plaintiff) M Barko (Defendant) JK Solicitors (Plaintiff) McCabe Terrill (Defendant) File Number(s): 2009/294748

Judgment 1HER HONOUR: This judgment deals with costs. The plaintiff's position is that costs should follow the event and therefore costs should be awarded to him. The defendant, New South Wales Land and Housing Corporation ("Housing"), seeks that the plaintiff pay its costs or alternatively that there be no order as to costs.

The s 120A Residential Tenancies Act 1987 argument 2The Residential Tenancies Act 1987 continues to apply in these proceedings despite the enactment of the Residential Tenancies Act 2010. This is because the plaintiff's original application to the Consumer, Trader and Tenancy Tribunal ("CTTT") was commenced under the Residential Tenancies Act 1987 and was not finally determined before the commencement of the Residential Tenancies Act 2010 (see Schedule 2 of the 2010 Act). 3Housing submitted that an order should be made for the plaintiff to pay its costs of the proceedings in accordance with s 120A of the Residential Tenancies Act 1987. That section reads: "120A Costs in court proceedings If a court in any proceedings is of the opinion that, having regard to the subject-matter of the proceedings, the taking of the proceedings was not warranted in the circumstances of the case because this Act makes adequate provision for the enforcement by the Tribunal of the rights concerned, the court shall order the plaintiff to pay the defendant's costs in such amount as the court determines." 4Housing submitted that s 120A of the Residential Tenancies Act was pleaded in its defence to the further amended statement of claim at [4]. Housing further submitted that s 120A is applicable on the basis that the orders sought by the plaintiff, and granted by the court, only relate to "repairs" and compensation for loss of enjoyment, and as such could have been obtained by order of the CTTT. 5In response the plaintiff submitted that s 120A of the Residential Tenancies Act should not apply as the order sought was not for "repairs" but for the complete removal and replacement of the asbestos and that it was Housing's own case that repairs be undertaken. 6The jurisdictional limit of the CTTT in this case is in the amount of $10,000 (see Clause 31 of the Residential Tenancies Regulation 2006). The plaintiff made an application to the CTTT for the removal of all asbestos inside and outside the premises. This application was transferred by consent to the Local Court due to the jurisdictional limit of the CTTT. When the matter came before the Local Court, the Local Court advised the plaintiff that the matter should be dealt with in the Supreme Court and accordingly it was transferred to this Court. The plaintiff submitted that the orders granted in this Court could not have been granted in the CTTT. 7It is my view that, as the Local Court transferred this matter to this Court for determination, it determined that neither the CTTT nor the Local Court had jurisdiction to hear this matter. The matter could not be heard in the CTTT so Housing's submission on this issue fails.