Cominos v Di Rico (No 2) [2016] NSWCATAP 138

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cominos v Di Rico (No 2) [2016] NSWCATAP 138 Hearing dates: 07 June 2016 Date of orders: 27 June 2016 Decision date: 27 June 2016 Jurisdiction: Appeal Panel Before: Wright J, President R Titterton, Senior Member Decision: (1) Appeal allowed. (2) The costs orders made on 1 April 2016 in proceedings HB 14/18947 and in proceedings HB 14/18936 are set aside. (3) The matter is remitted to the Consumer and Commercial Division of the Tribunal, as previously constituted, to reconsider the question of costs in both proceedings HB 14/18947 and HB 14/18936. (4) Each party is to provide to the Tribunal and to the other party any written submissions upon which he or they wish to rely on the question of the costs orders and on the question of whether the reconsideration should take place on the papers without an oral hearing on or before 19 July 2016. (5) Each party is to provide to the Tribunal and to the other party written submissions in reply on or before 26 July 2016. Catchwords: COSTS – where transitional provision applies such that the Legal Profession Act 2004 and the Legal Profession Regulation 2005 relating to ordered costs in proceedings commenced prior to 1 July 2015 continue to apply

COSTS – form of order – where order is for "costs incidental to proceedings" – unclear whether wording of order is clerical slip or intentional – failure to give reasons for making the order in that form – appeal allowed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 38, 60, 80 Civil and Administrative Tribunal Rules 2014 (NSW), r 36 Evidence Act 1995 (NSW), s 143 Home Building Act 1989 (NSW), s 48L Legal Profession Act 2004 (NSW), s 364 Legal Profession Regulation 2005 (NSW) Legal Profession Uniform Law Application Act 2014 (NSW), ss 75, 76 Legal Profession Uniform Law Application Regulation 2015 (NSW), cl 59 Legal Professional Uniform Law (NSW), s 172 Cases Cited: Antonio v Ian Cubitt's Classic Home Improvements Pty Ltd [2016] NSWCATAP 37 Collins v Urban [2014] NSWCATAP 17 Comcare v Labathas [1995] FCA 996; 61 FCR 149 Cominos v Di Rico [2016] NSWCATAP 5 Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 House v The King [1936] HCA 40;(1936) 55 CLR 499 McIntyre v Perkes (1988) 15 NSWLR 417 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Sze Tu v Lowe (No 2) [2015] NSWCA 91 The State of Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174 Category: Principal judgment Parties: Dion Cominos (Appellant) Antonio Di Rico and Marianna Di Rico T/as Tony Di Rico Building Services (Respondents) File Number(s): AP 16/19958 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 01 April 2016 Before: D Charles, General Member File Number(s): HB 14/18947. HB 14/18936