Pat Arcella and Carmen Arcella v Turrell Building Services Pty Limited Turrell Building Services Pty Limited v Pat Arcella and Carmen Arcella [2014] NSWCATCD 90

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Pat Arcella and Carmen Arcella v Turrell Building Services Pty Limited Turrell Building Services Pty Limited v Pat Arcella and Carmen Arcella [2014] NSWCATCD 90 Hearing dates: 15 and 16 April 2014 Decision date: 29 May 2014 Before: S Thode, Senior Member Decision: 1.Turrell Building Services Pty Limited is to pay Pat Arcella's and Carmen Arcella's costs of both proceedings: HB 12/42741 and HB 12 /52981 on the ordinary basis as agreed or assessed. Category: Principal judgment Parties: Pat Arcella and Carmen Arcella (applicants/cross respondent) Turrell Building Services Pty Limited (respondent/cross applicant) File Number(s): HB 12/42741 HB 12 /52981

REASONS FOR DECISION

The proceedings 1The applicants are the registered proprietors of premises located at Dural NSW (the owners) and brought a claim for defective building against the builder. The respondent was the builder retained to undertake renovation work. The builder filed a cross claim seeking payment of sums outstanding to him (the builder's claim). 2In 2012 the applicants commenced proceedings in the Tribunal. The proceedings were heard and finalised in 2014. The Tribunal made orders in favour of the homeowners. The builder was ordered to pay $22,034.89 to the homeowners. 3The builder's claim was dismissed. 4The homeowners submit that the builder was wholly unsuccessful and that costs should follow the event. 5The homeowners submitted they are entitled to an award of costs against the builder, the unsuccessful party. That is, the general rule applies and costs should follow the event. 6A number of concessions in respect of the defective items were belatedly made by the builder at the hearing. Until the concessions were made the homeowners rightly anticipated that they would be put to strict proof. The homeowners incurred costs in preparing for a hearing with all items in dispute. 7The builder submitted that the Tribunal must find "special circumstances" to award costs. This submission was misconceived. There is no requirement to find "special circumstances" before costs may be awarded in proceedings where the amount claimed exceeded $30,000.00. 8It was further submitted that the builder and the homeowners were each partly successful in their respective claims: "the Tribunal made a finding there was an amount due to the builder of $104,042.29 and... in relation to the homeowners claim that there was defective or incomplete work totalling $126,077.18 after the addition of builders margin of 25% and GST. The order made by the Tribunal therefore reflects a reconciliation of the amounts due and the submission on behalf of the homeowners that the builder was wholly unsuccessful is rejected." 9The builder submitted that it was substantially more successful than the homeowners as the award made reflected 11.047% of the amount claimed during the hearing. It was further submitted that the legal representation was disproportionate as the homeowners had engaged solicitor and counsel for what was a relatively straightforward case.