Owners Corporation SP 66595 v B S & J H Bailey Pty Ltd [2015] NSWCATAP 266

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Owners Corporation SP 66595 v B S & J H Bailey Pty Ltd [2015] NSWCATAP 266 Hearing dates: 27 July 2015 Date of orders: 10 December 2015 Decision date: 10 December 2015 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President P Molony, Senior Member Decision: (1) The appeal numbered AP15/26940 by BS & JH Bailey Pty Ltd against the Owners Corporation of Strata Plan 66595 is dismissed. (2) The appeal numbered AP15/28665 by the Owners Corporation of Strata Plan 66595 against BS & JH Bailey Pty Ltd is allowed. (3) The order numbered 4 made by the Tribunal in matter no HB 08/44917 on 19 March 2015 is set aside. (4) In matter no HB 08/44917 the builder is to pay the owners' costs of the proceedings as agreed or assessed (including the costs of the owners in respect of the limitation point raised by the builder). Catchwords: Home building – costs – appeal - no evidence to support Tribunal finding that builder admitted liability – consideration of who was successful party in proceedings – importance of Tribunal's refusal to make a work order - whether issues severable for the purposes of a costs order – whether conduct of party disentitling for the purposes of costs – Tribunal erred in the exercise of its costs discretion by taking into account two matters for which there was no evidence – appeal allowed Legislation Cited: Civil and Administrative Tribunal Act 2013 Consumer, Trader and Tenancy Tribunal Act 2001 Consumer Trader and Tenancy Tribunal Regulation 2009 Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 21 ALD 1 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Clarke v Tapp [2015] NSWADTAD81 Collins v Urban [2014] NSWCATAP 17; Donoghoe v Compass Housing Services [2015] NSWCATAP 9 Dranichnikov v. Minister for Immigration and Multicultural Affairs [2003] HCA 26: (2003) 197 ALR 389 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 Minister for Immigration and Multicultural Affairs v. Yusuf [2001] HCA 30: 206 CLR 323 Owners Corporation SP 66595 v Allianz Australia Insurance Limited (Home Building) [2009] NSWCTTT 103 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], Sze Tu v Lowe (No 2) [2015] NSWCA 91 Category: Principal judgment Parties: Owners Corporation SP 66595 (appellant) B S & J H Bailey Pty Ltd (respondent) Representation: AP 15/28665 Counsel: P M Barham Solicitors: Gibson Howlin