Koutoulas v Strangas & Son Building Contractors Pty Ltd (No 2) [2013] NSWSC 1556

Supreme Court New South Wales

Medium Neutral Citation: Koutoulas v Strangas & Son Building Contractors Pty Ltd (No 2) [2013] NSWSC 1556 Hearing dates: 24 October 2013 Decision date: 24 October 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: No order as to costs. Catchwords: COSTS - substantive proceedings resolved - no question of principle. Cases Cited: - Koutoulas v Strangas & Son Building Contractors Pty Ltd [2013] NSWSC 1260 - Koutoulas v Strangas & Son Building Contractors Pty Ltd [2013] NSWSC 1353 - Minister for Immigration and Ethnic Affairs, Re; Ex parte Lai Quin [1997] HCA 6; 186 CLR 622 Category: Costs Parties: George Koutoulas (First Plaintiff) Katrina Koutoulas (Second Plaintiff) Strangas & Son Building Contractors Pty Ltd (First Defendant) Consumer, Trader and Tenancy Tribunal of New South Wales (Second Defendant) Representation: Counsel: R. Jefferis (Plaintiffs) D.P. O'Connor (First Defendant) M. Hill (Second Defendant) Solicitors: Kenneth Harrison (Plaintiffs) Brischetto & Ford (First Defendant) Consumer Trader and Tenancy Tribunal (Second Defendant) File Number(s): 2013/275355

Ex Tempore Judgment 1On 13 September 2013 I heard an application by the plaintiffs for the stay of orders that had been made by the Consumer, Trader and Tenancy Tribunal ("CTTT") on 16 August 2013. Over the opposition of the defendant, I granted a stay (Koutoulas v Strangas & Son Building Contractors Pty Ltd [2013] NSWSC 1353). I found that there was at least an arguable case that the CTTT's orders involved a breach of the rules of procedural fairness, in that the material raised an arguable case that through some form of mix-up that was not the fault of the plaintiffs, they were denied notice of the hearing when the orders were made. 2At the end of the judgment I then addressed an application by the defendant for the costs of the stay application on the basis that the summons that had been filed had not properly specified the basis of the Court's jurisdiction that was being invoked or the grounds of the application. I ordered that the costs of the stay application be the defendant's costs in the cause (Koutoulas at [21]). In the ordinary course the playing out of that form of costs order would mean that if the plaintiffs were successful in the proceedings they would not get their costs of the stay and the defendant would not obtain its costs. Of course, if the defendant was successful, then it would recover its costs. 3Subsequent to my judgment, the parties filed consent orders granting final relief quashing the CTTT's orders made on 16 August 2013 and remitting the matter back to the CTTT. Those orders were entered on 24 September 2013. 4The reason why the parties made those orders was not addressed in evidence. In any event that is irrelevant, as the orders have now been made. What is significant is that those orders represent success for the plaintiffs in the proceedings. 5As I have indicated, the ordinary playing out of the order for costs I made on 13 September 2013 would have the result that the plaintiffs would not obtain their costs of the stay application and nor would the defendant. Nevertheless, the parties could not reach agreement over the question of the costs of these proceedings, even though they did reach agreement as to the substantive outcome. 6When an application for costs falls to be decided where there has not been judicial determination of the merits, certain principles come into play (see Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Quin [1997] HCA 6; 186 CLR 622 at 624 to 625). 7In a case such as this the fact that the plaintiffs obtained a form of relief that represented success would ordinarily be a matter that would lead to them being entitled to costs. However, two particular circumstances would tend against that result. 8The first is that, if it is correct to speak of fault in these proceedings, the fault that led to the plaintiffs being successful was not that of the defendant but that of a public body, namely, the CTTT. It appears that from an early stage of the proceedings the defendant must have made some informed assessment that the plaintiffs' complaints had substance. 9Second, as adverted to in my judgment, there was a noticeable lack of communication by the plaintiffs prior to their applying for a stay towards the defendant setting out the precise nature of its complaint. Thus, for example, even though they were required to, the plaintiffs did not serve upon the defendant their application to re-open the CTTT's orders (Koutoulas at [6]). 10Before me the plaintiffs now seek half their costs of the stay application. In effect, they seek a revisitation of the order that I made on 13 September 2013. The only matter that has changed since I made that order is that the position I described as arguable has now been settled by final orders. For the reasons I have already given, I do not think that circumstance warrants any reconsideration of the question of the costs of the plaintiff. 11The defendant seeks its costs of the entire proceedings on an indemnity basis. It also faces the obstacle that an order in that form involves a reconsideration of the order I made on 13 September 2013. It also faces the further hurdle that the usual determinant of costs, namely success on the substantive issues, was decided against it, although, as I have said, that was not a matter for which it was responsible. 12The basis for its application for indemnity costs is a matter that I have already adverted to, namely, the notable lack of communication by the plaintiffs of their complaint that they were denied notice of the hearing in the CTTT on 16 August 2013. In addition to that the defendant points to the absence of any articulated claim of a breach of natural justice in the summons filed in this Court or any letter setting out the basis on which relief was sought. 13It seems to me, however, that a reasonable reading of the affidavit that was filed in support of the summons would have indicated that the gravamen of the plaintiffs' complaint was that they did not get notice of the orders of 16 August 2013. 14The principal complaint of the defendant is that it was denied the opportunity to effectively agree with the plaintiffs that something had gone awry and to approach the CTTT on a consent basis for the reopening of the orders made on 16 August 2013. While it may have been denied that opportunity, I am not satisfied that, given the history of the litigation, had that matter been brought to their attention that would have been the result. My assessment of the matter, including the way in which the stay application unfolded on 13 September 2013 is that regardless of what would have been put to the defendant by the plaintiffs, their application for a stay would have been resisted. 15Nothing that has been put to me warrants a reconsideration of the playing out of the order I made on 13 September 2013 concerning costs. 16Accordingly, the order I make is that there be no order as to the costs of the proceedings.