Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wagg v Farthing (No 2) [2015] NSWCATAP 263 Hearing dates: On the papers Date of orders: 09 December 2015 Decision date: 09 December 2015 Jurisdiction: Appeal Panel Before: O Shub, Principal Member K Rosser, Senior Member Decision: (1) A hearing on costs is dispensed with pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013. (2) The Appellant is to pay the Respondent's costs of the appeal proceedings as agreed or assessed, within 28 days of such agreement or assessment. Catchwords: COSTS; Whether to dispense with a hearing; whether special circumstances exist Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Category: Costs Parties: Andrew Wagg and Marie Hackett – Appellants Dean Farthing – Respondent Representation: Solicitors: HWL Ebsworth - Respondent File Number(s): AP 15/09247 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 22 January 2015 Before: N Correy, Senior Member File Number(s): HB 11/43514 HB 11/62299 reasons for decision Introduction 1. On 6 October 2015, the Appeal Panel dismissed the appeal against a decision of the Tribunal made on 22 January 2015 in home building proceedings HB 11/43514 and HB 11/62299 (original proceedings). In doing so, the Appeal Panel also made the following orders: 3. Any application for costs of the appeal is to be filed and served within 14 days of the date of publication of these orders and is to be accompanied by a submission not exceeding three pages in length. 4. Any submission in response to an application for costs is to be filed and served within 14 days of the date of service of the application and is also not to exceed three pages in length. 1. The Appeal Panel put the parties on notice that subject to any submissions made by the parties, the Appeal Panel intended to determine any application for costs on the papers. 2. On 20 October 2015, the Respondent to the appeal applied for an order for costs and filed a submission in support of the application. No submission was received from the Appellant. Neither party sought a hearing on costs. 3. The question of costs of the proceedings below has not been decided by the Tribunal. The Respondent sought an order directing the Tribunal to give directions and determine the issue of costs in the original proceedings. It unnecessary for the Appeal Panel to do so, as the original proceedings are listed for directions before the Consumer and Commercial Division in respect of the issue of costs on 9 December 2015. Consideration 1. We have dispensed with a hearing in accordance with s 50(1)(c) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) because we are satisfied that the issue for determination can be adequately determined by considering the Respondent's written submission on costs. As noted above, neither party sought a hearing on costs. 2. The general costs rule that applies in appeal proceedings is that each party is to pay their own costs: NCAT Act s 60. Costs may only be awarded if the Tribunal "is satisfied that there are special circumstances warranting an award of costs": NCAT Act s 60(2). For there to be special circumstances, it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]. 3. Section 60(3) specifies matters to which the Tribunal may have regard when considering whether or not special circumstances exist. These matters include the nature and complexity of the proceedings: NCAT Act s 60(3)(d). 4. We are satisfied that the appeal concerned a number of factually and legally complex issues. These issues included the proper construction of the terms and the duties owed under the building contract, the lawful or unlawful termination of the contract, whether persons engaged by the Respondent were common law employees or contractors, whether the builder had a duty of care to provide design advice, alleged building defects and the measure of damages. The factually and legally complex issues ventilated on appeal resulted in the filing of voluminous documentation and submissions and justified the parties being represented by lawyers. 5. We are satisfied that the complexity of the appeal proceedings and the consequent need for the parties to be legally represented are sufficiently out of the ordinary to warrant an order for costs in this case. 6. The Appeal Panel makes the following orders: 1. A hearing on costs is dispensed with pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013. 2. The Appellant is to pay the Respondent's costs of the appeal proceedings as agreed or assessed, within 28 days of such agreement or assessment. ********** 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 Amendments 09 December 2015 - Coversheet - title - added (No 2) 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: 09 December 2015