The Owners - Strata Plan No 76597 v Dasco Constructions Pty Ltd [2014] NSWCATCD 96

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners - Strata Plan No 76597 v Dasco Constructions Pty Ltd [2014] NSWCATCD 96 Hearing dates: 3 June 2014 Decision date: 06 June 2014 Before: K Rosser, Senior Member Decision: 1.The parties are to pay their own costs. Catchwords: Costs where proceedings settled without a hearing; Part heard proceedings Legislation Cited: Civil and Administrative Tribunal Act (NSW) 2013 Consumer Trader and Tenancy Tribunal Act (NSW) 2001 Consumer Trader and Tenancy Tribunal Regulation 2009 Cases Cited: Latoudis v Casey [1990] 170 CLR 534 Oshlak v Richmond River Council [1998] HCA 11). Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia Ex Parte Lai Qin [1997] HCA 6 Category: Principal judgment Parties: The Owners - Strata Plan No 76597 (applicant) Dasco Constructions Pty Ltd (respondent) Representation: Mr Vernier for the applicant Ms McMahon for the respondent File Number(s): HB 12/05463

reasons for decision

Background 1Both parties seek costs in relation to the substantive application which was finalised without a hearing by orders being made by consent on 8 October 2013. The orders required the respondent to undertake twelve items of work, some of which involved the same work to be undertaken in more than one lot. 2The proceedings were commenced in the former Consumer Trader and Tenancy Tribunal [CTTT] on 31 January 2012. There was a history of negotiation between the parties relating to general and fire safety defects dating back to 2009. In the application, the applicant sought damages in respect of defective work. The value of the claim was said to be $400,000.00. Neither the defects nor the applicant's loss and damage were particularised. The covering letter from the applicant's solicitor stated that the parties had not undergone mediation because of the urgency of the situation. The urgency was said to be due to amendments to the Home Building Act (NSW) 1989 due to take effect from 1 February 2012. There was no explanation of how those amendments would have any effect on the applicant's claim, given that the building works subject to the claim had been completed in about January 2006 and there was therefore some eleven months to run on the statutory warranty period. 3The matter was first listed for directions on 9 March 2012. The hearing was adjourned by consent without directions being made. The Tribunal noted on the file that "settlement was likely". The matter was next listed for directions on 22 May 2012, when it was again adjourned by consent without directions being made. The next directions hearing on 10 August 2012 was also adjourned by consent without directions "to allow the parties to pursue settlement". This occurred again on 12 November 2013, when the Tribunal noted on the file that the respondent was rectifying 73 to 77 items and that the work was expected to be completed in March 2013. A directions hearing on 18 March 2013 was adjourned by consent for the same reason, with the Tribunal noting on file that the builder was on site and progress was satisfactory. The solicitor for the applicant advised that it was anticipated that issues other than costs would be resolved by the next call-over date. 4A letter to the Tribunal from the applicant's solicitor dated 14 June 2013 noted that the applicant's fire safety expert had only recently provided his report in relation to his inspection of the remediation works "undertaken (or not undertaken) by [the respondent]". A further directions hearing on 17 June 2013 was subsequently adjourned by consent on the basis that some work was still to be carried out. 5Finally, at the directions hearing on 8 October 2013, the applicant's solicitor handed up signed consent orders and orders were made accordingly. The parties were ordered to file and exchange submissions in relation to costs by 19 November 2013 if that issue could not be settled. Time for doing so was later extended to 3 December 2013. 6Correspondence from the applicant's solicitor led to the matter being listed for directions on 23 January 2014. The applicant claimed that the orders made on 8 October 2013 had not been fully complied with and was advised that if this had not occurred, the application could be renewed. In the event, no renewal application was filed and it is not in dispute that the agreed works were completed. 7The parties were again directed to file submissions in relation to costs, the applicant by 6 March 2014 and the respondent by 20 March 2014. At that time, the parties agreed to the issue of costs being dealt with on the papers. That timetable was further amended at the request of the applicant's solicitor on 10 March 2014. 8Subsequently, the solicitor for the respondent requested that the matter be listed for hearing rather than being dealt with on the papers. The hearing took place on 3 June 2014.