Symes v Mick Fabar Constructions Pty Ltd (No 2) [2016] NSWSC 69

Supreme Court New South Wales

Medium Neutral Citation: Symes v Mick Fabar Constructions Pty Ltd (No 2) [2016] NSWSC 69 Hearing dates: On the papers Date of orders: 16 February 2016 Decision date: 16 February 2016 Jurisdiction: Common Law Before: Wilson J Decision: 1. Each party is to bear their own costs. Catchwords: COSTS – NCAT - r 42.1 of the UCPR – costs follow event – S 98 of the CPA - s 60 of the NCAT Act – objectives of NCAT – whether each party should pay own costs Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Cases Cited: Mick Fabar Constructions Pty Ltd v Robert Symes & Kim Louise Filmer [2015] NSWCATAP 123 Mick Fabar Constructions Pty Ltd v Robert Symes & Kim Louise Filmer [2015] NSWCATAP 174 New South Wales v Stanley [2007] NSWCA 330 Oshlack v Richmond River Council (1998) 193 CLR 72; (1998) 193 CLR 72 Category: Costs Parties: Robert Symes (First Plaintiff) Kim Louise Filmer (Second Plaintiff) Mick Fabar Constructions Pty Ltd (Defendant) Representation: Solicitors: Baldock Stacy and Niven (Plaintiffs) Blackwell Short Lawyers (Defendant) File Number(s): 2015/00255840 Publication restriction: Not applicable

Judgment 1. This costs judgment arises out of a building construction dispute between Robert Symes and Kim Louise Filmer, respectively the first and second plaintiffs, and Mick Fabar Constructions Pty Ltd, the defendant. 2. Following proceedings in the NSW Civil and Administrative Tribunal ("NCAT"), in which the plaintiffs were successful (with an order for costs made in their favour), the defendant appealed the decision of the member. The defendant's appeal was dismissed but leave was granted to either party to apply for costs in relation to the appeal: Mick Fabar Constructions Pty Ltd v Robert Symes & Kim Louise Filmer [2015] NSWCATAP 123. 3. The application by the plaintiffs for costs was later refused by the Appeal Panel: Mick Fabar Constructions Pty Ltd v Robert Symes & Kim Louise Filmer [2015] NSWCATAP 174. 4. The plaintiffs subsequently sought leave to appeal to the Supreme Court, asking for, primarily, an order that the defendant pay the costs of the appeal. 5. The matter was heard before me on 11 December 2015. I made the following orders on 16 December 2015, 1. Leave to appeal refused; and 2. Each party is to bear their own costs unless an application is made to the Court within 14 days for costs, in which case the application will be determined on the papers. 1. Mick Fabar Constructions Pty Ltd, the defendant to the appellate proceedings before me, now seeks an order for the costs of the plaintiffs' unsuccessful action in this Court