Mick Fabar Constructions Pty Ltd v Robert Symes & Kim Louise Filmer [2015] NSWCATAP 174

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mick Fabar Constructions Pty Ltd v Robert Symes & Kim Louise Filmer [2015] NSWCATAP 174 Hearing dates: 20 May 2015 Date of orders: 18 August 2015 Decision date: 18 August 2015 Jurisdiction: Appeal Panel Before: The Hon D.Cowdroy QC, Principal Member S.Thode, Senior Member Decision: No order as to costs. Catchwords: Administrative Law - Appeal – Civil and Administrative Tribunal - no special circumstances - no order as to costs Legislation Cited: Home Building Act 1989 Cases Cited: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Category: Principal judgment Parties: Mick Fabar Constructions Pty Ltd (Appellant) Robert Symes & Kim Louise Filmer (Respondents) Representation: Mr Young, for the Appellant Ms Fraser & Ms Webb, for the Respondents File Number(s): AP 14/60533 Publication restriction: None Decision under appeal Court or tribunal: NCAT Jurisdiction: Consumer and Commercial Division Date of Decision: 25 November 2014 Before: D. Goldstein Senior Member File Number(s): HB 14/60533

REASONS FOR DECISION 1. In this matter the Appeal Panel has delivered its decision. The appeal was dismissed but leave was granted to either party to apply for costs. 2. The respondents to the appeal, by their application dated 29 June 2015 make an application that they be entitled to costs in accordance with s60(5) of the Civil and Administrative Tribunal Act 2013 No 2 (NSW) (the Act) and r38(2) of the Civil and Administrative Tribunal Rules 2014 (the Rules). 3. The respondents submit, as their primary submission, that costs should follow the event, "in accordance with s.60(5)" of the Act. Section 60 of the Act makes provision for the award of costs. By virtue of s60(1) it is provided that each party proceedings in the Tribunal is to pay their own costs. However pursuant to s60(2) it is provided that the Tribunal may award costs only if it is satisfied "that there are special circumstances warranting an award of costs". 4. By s60(3) the matters which the Appeal Panel may have regard to are those set out in subparagraphs 3(a) to 3(g) inclusive. The respondents rely upon Rule 38(2) of the Rules which provides, inter alia, "Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if: (a) the amount claimed or in dispute in the proceedings is more than $10,000 but nor more than $30,000 and the Tribunal has made an order under clause 10(2) of Schedule 4 of the Act in relation to proceedings, or (b) The amount claimed or in dispute in the proceedings is more than $30,000". 1. The amount in dispute in the current appeal was in excess of $30,000. 2. Section 60(5) of the Act defines "costs" as including the costs of, or incidental to, proceedings in the Tribunal (s60(5)(a)), and: (b)The costs of, or incidental to, the proceedings giving rise to the application or appeal as well as the costs of or incidental to the application for appeal. 1. Accordingly the respondents submit that s38(2) applies to the costs of the appeal.' 2. As an alternative to the primary submissions, the respondents submit that "special circumstances" exist to justify an award of costs in their favour. The respondents refer the Appeal Panel to Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at para 60 wherein Santow JA held that "special circumstances" do not need to be "extraordinary or exceptional": rather the circumstances may merely be "out of the ordinary". The respondents also refer the Appeal Panel to the decision in Sahyoum v Owners Corp. Strata Plan 75123 [2015] NSWCATAP 70 at [18] where the Tribunal found that whilst there were no extraordinary or exceptional circumstances it was out of the ordinary and that, together with the weakness of the appeal warranted an order for costs. 3. The appellant opposes the order for costs submitting there are no extraordinary or exceptional circumstances warranting such an order.