Concourt Pty Ltd v Victoria Mary Kerr [2015] NSWCATAP 145

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Concourt Pty Ltd v Victoria Mary Kerr [2015] NSWCATAP 145 Hearing dates: 9 June 2015 Date of orders: 21 July 2015 Decision date: 21 July 2015 Jurisdiction: Appeal Panel Before: Dr J G Renwick SC, Senior Member S Thode, Senior Member Decision: Application for an order for costs refused. Slip rule applied. Catchwords: Civil and Administrative Tribunal – Appeal Panel – costs application – no special circumstances – application refused Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Category: Costs Parties: Concourt Pty Ltd (Appellant) Victoria Mary Kerr (Respondent) Representation: Mr Allan of counsel instructed by Messrs Ziman & Ziman Mr Simpkins of counsel instructed by Messrs Bird & Bird solicitors File Number(s): AP 15/10590 Publication restriction: None Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Appeal Panel Citation: [2015] NSWCATAP 106 Date of Decision: 13 November 2014 Before: G Meadows, Senior Member File Number(s): AP 15/10590; AP 15/59781

REASONS FOR DECISION 1. On 9 June 2015, by Principal Decision [2015] NSWCATAP 106, the following orders were made: "In relation to AP 14/59781, the Appeal Panel orders that: The application for leave to appeal out of time is dismissed. The appeal is otherwise dismissed. In relation to AP 15/10590, the Appeal Panel orders that: The appeal is allowed in part." 1. It has been brought to our attention that the file numbers of the two appeals have been accidentally transposed. In accordance with s 63 of the Civil and Administrative Tribunal Act ('the Act'), we direct the registrar to alter the text of the orders made and of paragraphs 42 and 43 by replacing 14/59781 with 15/10590 and vice versa. 2. There remains the question of costs of the appeal. It is not appropriate for us, who did not hear the matter below, to make orders for costs in that regard. An application should be made to Senior Member Meadows, who dealt with the matters below for the costs of the matters below. 3. In relation to the appeal, we note that the matter ran for less than one day. True it is, that we dismissed the builder's application for an extension of time and we have noted in our reasons, the unsatisfactory conduct of the builder in the appeal. We have had regard to the written submissions made, however, we consider that in the end, the owner was not unnecessarily disadvantaged in the conduct of the proceedings, nor were the proceedings unreasonably prolonged, nor were the proceedings frivolous or vexatious, although in the end, we declined to extend time. In fact, most of the owner's grounds of appeal were also unsuccessful. The owner only succeeded in increasing the amount payable to her by $1,221. 4. In the circumstances, where there was some success on each side, having taken into account the homeowner's submissions, we decline to find special circumstances warranting an order for costs. We vary the decision under appeal as follows. 1. In matter HB 13/31696, Concourt Pty Ltd is indebted to Victoria Mary Kerr in the sum of $77,379.50. 2. Concourt Pty Ltd is to pay Victoria Mary Kerr the sum of $37,727.67.