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. Costs generally 8Section 98 of the Civil Procedure Act 2005 relevantly reads: "98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act: (a) costs are in the direction of the court, and (b) The court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. .., (4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to: (a) costs up to, or from, a specified stage of the proceedings, or (b) a specified proportion of the assessed costs, or (c) a specified gross sum instead of assessed costs, or (d) such proportion of the assessed costs as does not exceed a specified amount (...)" 9The Uniform Civil Procedure Rules, rules 42.1 and 42.2 read: "42.1 General Rule that costs follow the event Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs. 42.2 General rule as to assessment of costs Unless the court orders otherwise or these rules otherwise provide, costs payable to a person under an order of the court or these rules are to be assessed on the ordinary basis." 10Housing submitted in the alternative that there should be no order as to costs of the proceedings on the basis that first, the plaintiff was only successful on two of the orders sought, conceding at the commencement of the hearing that the numerous other grounds were never disputed by Housing; secondly, numerous offers of settlement were made to the plaintiff which, in some respects, were not bettered on judgment; and thirdly, a significant period (at least one day) of the hearing was wasted in dealing with Housing's objections to the plaintiff's affidavit evidence, the vast majority of which was not admitted. 11The plaintiff's lengthy affidavits were repetitive and confusing. However, these affidavits were drafted by the plaintiff without the benefit of legal representation and he should not be penalised for this. Fortunately, counsel represented the plaintiff at the hearing. Housing made a decision not to rely upon the evidence of its main deponent Mr Spackman. 12Housing further submitted that, first, it had advised the plaintiff that any rectification work would reasonably require him to be relocated to alternative premises; secondly, that immediately upon becoming aware of the rectification work required at the premises, it had made arrangements for this work to be completed; and thirdly, that since April 2007, Housing had remained prepared to carry out rectification works to the premises. 13I accept that Housing agreed that it would collect and remove all the loose pieces of broken asbestos cement from the front and back yards; excavate, remove and replace all the topsoil in the front and back yards; and other work necessary to ensure that the house and front and back yards were decontaminated and could be used and occupied without undue risk of inhalation of asbestos fibres and that it would provide adequate alternative accommodation to the plaintiff pending removal of the asbestos from the premises and garden while the work was carried out and until a clearance certificate had been obtained. Housing agreed that the plaintiff would be relocated while the work was being carried out. I accept that the plaintiff was offered alternative accommodation but found it to be unsuitable due to his medical condition. 14That left the central issue in the hearing of these proceedings as to whether the asbestos walls and ceilings in the kitchen, bathroom and laundry had to be replaced or repaired. The plaintiff successfully argued that they had to be replaced. The plaintiff also successfully argued that the eaves and the electricity box needed to be replaced and that he should be awarded damages for disappointment and distress caused by physical inconvenience. In other words, the plaintiff succeeded on the main issues in dispute and on the other issues. 15So far as the settlement offers are concerned (those dated 8 August 2009, 8 March 2010 and 20 September 2010) expressed to be Calderbank offers, Housing offered to carry out repair work outlined in the Pickford Rhyder report and offered alternative accommodation. Dr De Silva's report and evidence was preferred over that of Mr Rhyder. These letters of offer fall short of the relief granted by this Court. 16As the plaintiff was wholly successful with his claim, the usual costs order should apply. Costs follow the event. The defendant is to pay the plaintiff's costs of the proceedings. The Court orders that: (1) The defendant is to pay the plaintiff's costs of the proceedings. ********** Amendments 22 December 2011 - typographical error Amended paragraphs: 8 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: 22 December 2011