Kevin Pavert and Liz Pavert v Reward Homes Pty Ltd [2014] NSWCATCD 241

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kevin Pavert and Liz Pavert v Reward Homes Pty Ltd [2014] NSWCATCD 241 Hearing dates: Decided on the papers Decision date: 11 December 2014 Jurisdiction: Consumer and Commercial Division Before: R F Buckley, Senior Member Decision: Each party is to pay their or its own costs of the application Catchwords: Unfettered discretion Intransigent position of both parties Legislation Cited: Consumer Trader & Tenancy Tribunal Act 2001 (NSW) repealed Consumer Trader & Tenancy Tribunal Regulation 2009 (NSW) repealed Uniform Civil Procedure Rules 2005 Cases Cited: Oshlack v Richmond River Council [1998] HCA 11

Wright v Foresight Constructions Pty Limited [2011] NSWCA 327

Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373 Category: Costs Parties: Kevin Pavert and Liz Pavert (applicants) Reward Homes Pty Ltd (respondent) Representation: The decision was concluded in chambers Solicitors-Michael Atkinson and Associates-for the applicants Prime Lawyers – for the respondent File Number(s): HB 13/04117 Publication restriction: Unrestricted

reasons for decision

BACKGROUND 1. The substantive application was the subject of Orders and Reasons published on 2 September 2014. 2. There is no dispute that the amount in issue with respect to the application exceeded $30,000.00. The application, as formulated immediately before the start of the proceedings on 22 October 2013, contained claims amounting to $161,648.38 made up as follows: 1. $93,160.38 for building defects; 2. $59,648.00 for consequential financial losses; and 3. $8,840.00 for liquidated damages 1. At the commencement of proceedings, the applicants withdrew their claim for financial loss. After three days of hearing and lengthy detailed submissions from both parties, the eventual outcome of the application was that the respondent builder was ordered to pay the applicants the amount of $17,278.00. 2. The legislative and regulatory basis of any award of costs is governed in the context of both applications by s.53 of the Consumer, Trader and Tenancy Tribunal Act 2001(NSW)(repealed)(the CTTTA), and Reg. 20 of the Consumer, Trader and Tenancy Tribunal Regulation 2009(NSW)(repealed)( the CTTTR). 3. Relevantly, s.53 of the CTTTA is in the following terms: "53 Costs (1) Subject to this section and the regulations, the parties in any proceedings are to pay their own costs. (2) The Tribunal may, in accordance with the regulations, award costs in relation to any proceedings. (3) If costs are to be awarded by the Tribunal in accordance with the regulations, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (4) In this section, "costs" includes the costs of, or incidental to, proceedings. (5) This section does not apply in relation to proceedings under the Strata Schemes Management Act 1996 or the Community Land Management Act 1989 " (emphasis). 1. It should be noted at this point that sub-section 53(1) of the CTTTA provides a different presumptive starting point than does Reg. 42.1 of the Uniform Civil Procedure Rules 2005 which by comparison is in the following terms: "42.1 General rule that costs follow the event (cf SCR Part 52A, rule 11) 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" (emphasis). 1. The determination of any costs entitlement does not follow the formula outlined in the UCPR as frequently enunciated by way of a general rule in Oshlack v Richmond River Council [1998] HCA 11 at [67 – 69] per comments of McHugh J with whom Brennan CJ agreed. 2. Reg. 20 of the CTTTR is in the terms set out below. Reg 20(4) is apposite to the present circumstances. It is a wide discretion, and allows the Tribunal to award costs, "…in such circumstances as it thinks fit." "20 Costs generally (1) This clause applies to the awarding of costs by the Tribunal as provided by section 53 of the Act. (2) The Tribunal may award costs in relation to proceedings in respect of which the amount claimed or in dispute is not more than $10,000, or in respect of which no amount is claimed or in dispute, only if the Tribunal is satisfied that there are exceptional circumstances that warrant the awarding of costs. (3) In any proceedings in respect of which the amount claimed or in dispute is more than $10,000 but not more than $30,000, the Tribunal may award costs in relation to the proceedings only if: (a) the Tribunal is satisfied that there are exceptional circumstances that warrant the awarding of costs, or (b) the Tribunal has made an order under section 30 (2) of the Act in relation to the proceedings. (4) In any proceedings in respect of which the amount claimed or in dispute is more than $30,000, the Tribunal may award costs in relation to the proceedings in such circumstances as it thinks fit. (5) Despite any other provision of this clause, the Tribunal may order: (a) that the costs of proceedings on an application for rehearing of a matter are, if the applicant fails to attend the hearing of the application, to be paid wholly or in part by the applicant, or (b) that the costs of any proceedings that the Tribunal considers to be frivolous, vexatious, misconceived or lacking in substance, or that otherwise should not be heard or proceeded with, be paid wholly or in part by the person who instituted the proceedings. (6) The amount of any costs under subclause (5) is to be substantiated in accordance with directions given by the Chairperson or, in the absence of such directions, in such manner as the Tribunal thinks fit." 1. The nature of the Tribunal's discretion was the subject of comment of Basten JA in Wright v Foresight Constructions Pty Limited [2011] NSWCA 327 where at [36] His Honour stated as follows:- "The general rule in the Tribunal is that each party is to pay its own costs, subject to the regulations: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ("the CTTT Act "), s 53(1) and (2). The Tribunal referred in its second reasons to its jurisdiction under the Consumer, Trader and Tenancy Tribunal Regulation 2009 ("the CTTT Regulation"), cl 20(4). That provision permitted the Tribunal, in any proceedings in respect of which the amount claimed or in dispute was more than $30,000 to award costs "in relation to the proceedings in such circumstances as it thinks fit". A power conferred in these terms is "unfettered" in the sense that the Tribunal may make such order as it thinks appropriate, so long as it acts in accordance with the subject matter, scope and purpose of the power. In relation to the award of costs in litigation, the accepted purpose is, where costs are awarded in favour of one party, to compensate that party for the expense incurred in respect of the litigation. (In respect of smaller claims, the power of the Tribunal to award costs is constrained, for example by a requirement that there be "exceptional circumstances": cl 20(2) and (3).)"