Sally Haddad v Homelands Village Pty Ltd (No 2) [2015] NSWCATAP 242

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sally Haddad v Homelands Village Pty Ltd (No 2) [2015] NSWCATAP 242 Hearing dates: On the papers Date of orders: 11 November 2015 Decision date: 11 November 2015 Jurisdiction: Appeal Panel Before: D Patten, Principal Member P Boyce, Senior Member Decision: 1. In appeal AP 15/03605 the appeal be dismissed with no order as to costs.

2. In appeal AP 14/59183 the appellant Sally Haddad pay the costs of the respondent Homeland Village Pty Ltd on a party and party basis as agreed or as assessed. Catchwords: Appeal dismissed for want of prosecution – order for costs appropriate Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Dividing Fences Act 1991 (NSW) Cases Cited: Larney v Joannson [2013] NSWCA 409 Category: Costs Parties: Sally Haddad (Appellant) Homelands Village Pty Ltd (Respondent) Representation: On the papers File Number(s): AP 14/59183; AP 15/03605 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 7 November 2014; 18 December 2014 Before: K Ross, General Member File Number(s): COM 14/12706

REASONS FOR DECISION 1. On 2 July 2015 the Appeal Panel dismissed appeal AP 14/59183 for want of prosecution. That left on foot a cross appeal by Homelands Village Pty Ltd (Homeland) AP 15/03605 against the dismissal of its application for costs in the Tribunal below. Also on foot is Homeland's application for an order for costs in respect of the appeal AP 14/59183. 2. It was ordered that the outstanding matters be determined on the papers and both parties were given leave to make submissions. Homelands did so but no submission has been received from Ms Haddad. 3. As to the costs below we see no reason to disturb the Tribunal's order of 18 December 2014 to make no order as to costs. We respectfully agree with the Tribunal that no special circumstances were proved within s 60(2) of the Civil and Administrative Tribunal Act. Indeed contrary to the submissions of Homeland we are by no means satisfied that the notice under s 11 of the Dividing Fences Act relied upon by Ms Haddad was unarguably defective. Larney v Joannson [2013] NSWCA 409 does not seem to us to provide support for that proposition. 4. However different considerations apply to the appeal. We regard the institution of an appeal followed by failure to comply with directions and otherwise to prosecute it as constituting a special circumstance for the purposes of s 60 (2). In our opinion Homeland should have its costs of the appeal as it has been put to expense by Ms Haddad in circumstances which she has not seen to fit to attempt to justify.