Porthaze Pty Limited v Friend [2016] NSWCATCD 71

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Porthaze Pty Limited v Friend [2016] NSWCATCD 71 Hearing dates: 17 December 2015 Decision date: 23 August 2016 Jurisdiction: Consumer and Commercial Division Before: D. Goldstein Senior Member Decision: 1. In HB 15/32089 each party must pay their own costs.

2. In HB 15/41204 Porthaze Pty Limited must pay Simon and Katrina Friend the sum of $4,100.00 as their costs of the proceedings within 14 days of the date of this order. Catchwords: Costs – Special Circumstances - Calderbank offers Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Boorer v HLB Mann Judd (NSW) Pty Limited (No. 2) [2012] NSWSC 1584, CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21, Jones v Bradley (No. 2) [2003] NSWCA 258, Miwa Pty Ltd v Siantan Properties Pte Ltd (No. 2) [2011] NSWCA 344, MSP Consulting and Building Constructions Pty Ltd v Karkoulas (No 2) [2016] NSWCATAP 183 Oshlack v Richmond River Council (1998) 193 CLR 72 Texts Cited: None cited Category: Costs Parties: Applicant: Porthaze Pty Limited Respondents: Simon and Katrina Friend Representation: Solicitors: Australian Business Lawyers & Advisors Pty Limited for the applicant File Number(s): HB 15/32089 and HB 15/41204 Publication restriction: Unrestricted

REASONS FOR DECISION 1. In these proceedings final orders supported by detailed reasons for decision were made on 1 April 2016. 2. The orders and reasons were provided in two sets of proceedings. First in proceedings HB 15/ 32089 instituted by Porthaze Pty Ltd who I will refer to as the contractor, it was successful in obtaining an order that the owners pay it the sum of $5,819.10. 3. Secondly, in HB 15/41204 instituted by the owners, they were successful in obtaining an order that the contractor pay them the sum of $9,304.00 in connection with defective work. 4. The contractor's application sought the sum of $5,819.10 against the owners. 5. In their application against the contractor, the owners claimed the sum of $29,063.10. As recorded in the Reasons for Decision that amount was broken up into a request for an order that the owners did not have to pay the contractor the sum of $5,819.10 and an order that the contractor pay the owners $23,244.00. However the owners amended their claim as shown in exhibit D. the amount of $30,610.00 was claimed. In total the owners amended claim was for $34,310.00 excluding expert's costs. 6. As stated in the Reasons for Decision the owners amended their application as follows: 1. Work order to complete outstanding defects; 2. costs of expert witness reports $4,100.00; 3. costs for delays and compensation for damage to walls, $3,000.00; and 4. time in dealing with the proceedings, $700.00. 1. Section 60 of the Civil and Administrative Tribunal Act 2013 (the 'Act') provides that: 'Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section: costs includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.' 1. Rule 38 of the Civil and Administrative Tribunal Rules 2014 provides: 'This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if: (a) the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under clause 10 (2) of Schedule 4 to the Act in relation to the proceedings, or (b) the amount claimed or in dispute in the proceedings is more than $30,000.' 1. I will only have the jurisdiction to award costs under section 60 of the Act if I am satisfied that there are special circumstances warranting an award of costs. 2. In CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 Principal Member Titterton stated after considering the relevant authorities: 'The authorities are consistent in stating that "special circumstances" are circumstances that are out of the ordinary; they do not have to be extraordinary or exceptional circumstances' 1. Each party has had the opportunity to file and serve written submissions on the costs issues. I will deal with each party's application for costs separately rather than viewing both applications as one set of proceedings and then ascertaining which party was successful.