Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tofighi v Adami [2015] NSWCATAP 260 Hearing dates: On the papers Date of orders: 03 December 2015 Decision date: 03 December 2015 Jurisdiction: Appeal Panel Before: P Wass, SC Senior Member K Rosser, Senior Member Decision: (1) Pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013, a hearing on costs is dispensed with. (2) In the appeal decision of Omid Tofighi t/as Sovereign Buildings v Anahita Adami and Mansoor Adami [2015] NSWCATAP 189, the Appellant is to pay the Respondents' costs of the appeal on the ordinary basis. Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) –whether special circumstances exist warranting an order for costs. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Wright v Commissioner of Police (Costs) [2015] NSWCATAP 69 Category: Costs Parties: Omid Tofighi trading as Sovereign Buildings — Appellant Anahita and Mansoor Adami — Respondents Representation: Mr Atkinson, solicitor, for the Respondent File Number(s): AP 14/46395 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 29 April 2014 Before: S F Smith, General Member File Number(s): HB 13/27279 and HB 13/04832 reasons for decision Introduction 1. This is an application for costs of an appeal. The appeal to which it relates concerns decisions of the Tribunal at first instance in respect of residential building work. The Appeal Panel dismissed the Appeal: see Omid Tofighi t/as Sovereign Buildings v Anahita Adami and Mansoor Adami [2015] NSWCATAP 189. 2. At the hearing before the Appeal Panel the Respondents submitted that the Appellant should pay their costs of the appeal. The Appellant did not respond to that submission. However at that time, the Respondents did not identify any basis upon which the Appeal Panel might find that there are special circumstances warranting an order for costs pursuant to s 60 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). See also Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [8]. 3. In circumstances where special circumstances had not been identified, the Appeal Panel made no order as to costs. However, as the Appeal Panel did not hear full argument on costs it granted liberty to the parties, if they wish to do so, to apply within 14 days of the date of the Appeal Panel's orders to make an application for costs. 4. In response to that liberty, the Respondents on 10 September 2015 made an application for costs of the appeal and on 15 September 2015, filed written submissions in support of that application. The Appellant did not respond to the liberty granted and filed no submissions in reply. 5. The Respondents have not sought a hearing on costs. The Appeal Panel is satisfied that the question of costs can be adequately determined in the absence of the parties on the basis of the Respondents' submissions. A hearing on costs has accordingly been dispensed with under s 50(1)(c) NCAT Act. Jurisdiction to award costs 1. Section 60 NCAT Act provides that in the ordinary course each party to the proceedings is to pay its own costs and that the Appeal Panel will only award costs if it is satisfied that there are special circumstances warranting such an award. Section 60(3) provides that in determining whether or not to award costs, the Appeal Panel may have regard to a number of matters that are set out therein. Respondents' submissions on costs 1. The Respondents correctly submit that what will suffice as "special circumstances" justifying an award of costs, will be those that are "out of the ordinary" and not necessarily those that are "extraordinary or exceptional". 2. The Respondents rely specifically on s 60(3)(d) ("the nature and complexity of the proceedings") and, as contemplated by s 60(3)(g), other "relevant" matters. 3. In short, they rely on the following matters: 1. The issues raised were damages for incomplete and defective work, and damages for unpaid contract monies. 2. The Appellant's notice of appeal relied on 36 separate grounds of appeal. 3. At hearing the Appellant indicated that various grounds were no longer pressed. 4. A number of grounds raised questions of law. 5. Both parties appeared instructed by lawyers, and retained both barristers and solicitors at the hearing. 6. Matters of contract construction justified the retention of legal representation. 7. The claim involved more than $30,000.00, which is a relevant matter as it may have justified a costs order had the matter been heard pursuant to Clause 20(4) of the CTTT Regulation. Consideration 1. The Appeal Panel has tended to accord more weight to outcome as a significant factor in cases where the losing party has, as in this case, brought an appeal and has again been unsuccessful: see Wright v Commissioner of Police (Costs) [2015] NSWCATAP 69. 2. The Appeal Panel accepts that this case involved a level of complexity which rendered it unusual. It is not without moment that much of that complexity was a result of the numerous grounds of appeal that were ultimately abandoned. It is not suggested that this "unreasonably" delayed the proceedings and added to its cost, but it did render unusual and complex a case which might not otherwise have been so, at least not to the same extent. 3. The complexity of the case resulted in the parties being legal represented and more complex issues of contractual construction were debated before the Appeal Panel. 4. In all the circumstances, and where no opposition has been put to the application for costs, the Appeal Panel finds that the prerequisites to the awarding of costs have been satisfied. Orders 1. Accordingly, the Appeal Panel makes the following orders: 1. Pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013, a hearing on costs is dispensed with. 2. In the appeal decision of Omid Tofighi t/as Sovereign Buildings v Anahita Adami and Mansoor Adami [2015] NSWCATAP 189, the Appellant is to pay the Respondents' costs of the appeal on the ordinary basis. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 December 2015