The Owners - Strata Plan 69743 v TRT Constructions Pty Ltd and John & Simon Constructions Pty Ltd [2014] NSWCATCD 119

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners - Strata Plan 69743 v TRT Constructions Pty Ltd and John & Simon Constructions Pty Ltd [2014] NSWCATCD 119 Hearing dates: On the papers Decision date: 11 July 2014 Before: M Harrowell, Principal Member Decision: 1. The applicant is to pay to the first respondent the costs of the first respondent thrown away by reason of the transfer of these proceedings to the Supreme Court of New South Wales, such costs to be paid on an ordinary basis. 2. The assessment of the costs pursuant to order 1 is to await the finalisation of these proceedings in the Supreme Court of New South Wales. 3. The applicant to pay the costs of the application as agreed or assessed on an ordinary basis. Catchwords: Costs Cases Cited: United Group Rail Services v Rail Corporation of NSW [2009] NSWCA177

Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Category: Principal judgment Parties: The Owners - Strata Plan 67742 (applicant) TRT Constructions Pty Ltd (first respondent) John & Simon Constructions Pty Ltd (second respondent) Representation: AG Roger (first respondent) Mr I Jones - Buckner Jones (applicant) Legal One Services - (first respondent) File Number(s): HB 09/48695 Publication restriction: -

reasons for decision

Introduction 1The applicant is the Owners Corporation SP 69743. The proceedings relate to a building claim in relation to the construction of a property at [XXX] Merrylands. The application was filed in the Tribunal on 22 October 2009. 2At the time the proceedings were commenced the value of the claim was estimated at $300,000.00. (see original application) 3The first and second respondents were the builder and developer respectively. 4As is evident from the date when the proceedings were commenced, the proceedings remain unresolved despite having been in the Tribunal for nearly 5 years. There have been a substantial number of directions hearings as well as an application brought by the first respondent that the proceedings be dismissed because the first respondent contended that the proceedings had not been progressed in a proper way and that the applicant had failed to comply with the Tribunal's directions. In relation to the application to strike out, this was heard and determined by the Tribunal on 8 April 2013 and orders were made to strike out the proceedings. 5The decision to strike out the application was appealed to the District Court of New South Wales. On 3 September 2013 the District Court made orders setting aside the order striking out the proceedings and remitting the proceedings to the Civil and Administrative Tribunal of New South Wales (NCAT) pursuant to the Civil and Administrative Tribunal Act, 2013. 6Related proceedings commenced by Ms Aida Chahine, being application HB 10/09218, had also been struck out for the same reasons and subsequently where appealed to the District Court. Again the District Court set aside the strike our orders and remitted the proceedings to NCAT. However, in these proceedings the solicitor for the applicant ceased to act and the application was dismissed by order of the Tribunal on 23 March 2014. 7In consequence of the proceedings being remitted from the District Court, various directions hearings occurred for the purpose of making directions to facilitate the completion of the evidence and the finalisation of this dispute. When the matter was listed before the Tribunal on 29 May 2014, the Tribunal was informed that the applicant sought to increase its claim to an amount said to be as high as $800,000.00. Reliance was placed on a Scott Schedule and report prepared by Mr G Todarello dated 2 February 2014. However, the applicant advised the Tribunal that the expert had been "working on merging ... further defects into an expanded Report and Scott Schedule including doing further inspections, but the expanded document is not quite complete." 8On 29 May 2014, the Tribunal made orders allowing the applicant to withdraw the proceedings against the second respondent John & Simon Construction Pty Ltd and made orders transferring the proceedings against the first respondent TRT Constructions Pty Ltd to the Supreme Court of New South Wales. The transfer order was made because the Tribunal does not have jurisdiction to hear and determine a claim of $800,000.00. 9The first respondent applied for costs incurred by it in the Tribunal thrown away by reason of the transfer of the proceedings to the Supreme Court and the parties were directed to file submissions in relation to this application, the determination of which was to be made "on the papers".