TA & JR O’Keefe Pty Ltd v Holroyd [2015] NSWCATAP 198

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: TA & JR O'Keefe Pty Ltd v Holroyd [2015] NSWCATAP 198 Hearing dates: On the papers Date of orders: 21 September 2015 Decision date: 21 September 2015 Jurisdiction: Appeal Panel Before: P Wass SC, Senior Member K Rosser, Senior Member Decision: 1. A hearing on costs is dispensed with in accordance with s 50(1)(c) of the Civil and Administrative Tribunal Act 2013.

2. The applications for costs are dismissed.

3. The parties are to pay their own costs. Catchwords: Costs on appeal; whether special circumstances Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Texts Cited: Nil Category: Costs Parties: TA & JR O'Keefe Pty Ltd – Appellant Benita Holroyd – First Respondent Clarence Valley Council – Second Respondent Representation: Solicitors: Pollack Greening & Hampshire - Appellant MJO Legal – First Respondent File Number(s): AP 14/46530 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 1 April 2014 Before: P Briggs, General Member File Number(s): HB 11/35746

reasons for decision

Introduction 1. On 18 June 2015, the Appeal Panel allowed an appeal against an order for costs that had been made against the appellant (the builder) in the Tribunal below, in circumstances where the Tribunal proceedings had been settled and consent orders made. 2. The background to the original application is set out in the reasons for decision on the appeal (TA & JR O'Keefe Pty Ltd v. Holroyd [2015] NSWCATAP 112 (18 June 2015). However, in brief, the application concerned a dispute in relation to a residential building contract. The contract was between the builder and the second respondent (the council). The contract works were undertaken to benefit the first respondent (the owner). The owner fell into dispute with the builder and commenced proceedings in the Tribunal. The council was joined to the proceedings on the application of the builder and the council's involvement in the matter was central to the parties reaching a settlement, save as to the issue of costs. 3. The Tribunal below made an order for costs in favour of the owner against the builder on the basis that it had been reasonable for the owner to commence proceedings. This order was the subject of the appeal proceedings. On appeal, the Appeal Panel found that in making an order for costs against the builder, the Tribunal had erred in its application of the test in Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 (the Aust-Homes Investments test). 4. The builder did not raise the Tribunal's application of the Aust-Homes Investments test as a ground of appeal in either the original Notice of Appeal, the amended notice of appeal or in its first written submission. Rather, it was raised for the first time during the hearing. The Appeal Panel allowed the ground to be raised in the appeal as it raised a significant question that required determination. The Appeal Panel found that the new ground of appeal did not occasion delay or give rise to any case management issues and there was no prejudice raised by the owner that could not be properly accommodated by an order for costs in her favour, should such an order be otherwise appropriate to make.