Penrith City Automotive Pty Ltd v Independent Asphalt Services Pty Ltd [2016] NSWCATCD 82

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Penrith City Automotive Pty Ltd v Independent Asphalt Services Pty Ltd [2016] NSWCATCD 82 Hearing dates: On the papers Decision date: 05 October 2016 Jurisdiction: Consumer and Commercial Division Before: M Eftimiou General Member Decision: 1. Independent Asphalt Services Pty Ltd to pay to Penrith City Automotive Pty Ltd the sum of $4,620.00 with respect to costs within 28 days of the date of this order. Catchwords: COSTS Legislation Cited: Civil and Administrative Tribunal Act 2013, Civil and Administrative Tribunal Rules 2014 Cases Cited: Oshlack v Richmond River Council (1998) 193 CLR 72 Category: Costs Parties: Penrith City Automotive Pty Ltd (costs applicant) Independent Asphalt Services Pty Ltd (costs respondent) Representation: File Number(s): GEN 16/18121 Publication restriction: Nil

reasons for decision 1. In these proceedings orders were made on 10 August 2016 in the following terms: 1. Independent Asphalt Services Pty Ltd is to pay Penrith City Automotive Pty Ltd the sum of $11,000.00 immediately. 1. The above orders were made following a hearing on 10 August 2016. 2. On 10 August 2016, orders were made for the parties to file and serve submissions on the question of costs. Both parties filed submissions as to costs. 3. The Applicant being the successful party in the proceedings seeks orders for costs in its favour. 4. Section 60 of the Civil and Administrative Tribunal (NCAT) Act 2013 states that: '(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: whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, 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, the nature and complexity of the proceedings, whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, whether a party has refused or failed to comply with the duty imposed by section 36 (3), any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: determine by whom and to what extent costs are to be paid, and order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (5) In this section: costs includes: the costs of, or incidental to, proceedings in the Tribunal, and 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 (NCAT) Rules 2014 states: '(1) 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: 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 the amount claimed or in dispute in the proceedings is more than $30,000.' 1. By reason of Rule 38 above, I have the discretion to award costs in these proceedings. I note that the amount claimed in these proceedings was in excess of $30,000.00. 2. The general law position is that a successful party has a "reasonable expectation" of being awarded costs against the unsuccessful party. Oshlack v Richmond River Council (1998) 193 CLR 72 at [67] and at [134]. 3. At paragraph 67 of the judgement, Gaudron and Gummow J.J. stated 'The expression the "usual order as to costs" embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party[96]. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.' 1. At paragraph 134(2) of the judgement, Kirby J. stated: '2. Notwithstanding the width of the statutory language by which the discretion was conferred on the trial court, it came to be said in civil non-jury trials that a successful party, in the absence of special circumstances, had a reasonable expectation of obtaining an order for costs in its favour unless "for some reason connected with the case" a different order was specially warranted[199]. Any departure from this expectation would require that there should be material upon which the adverse discretion could be properly exercised[200]. It could not be exercised by reference to idiosyncratic notions or to facts and circumstances irrelevant to the case. Yet, until the discretion had been exercised and a costs order made in favour of a successful party, that party had no right to the order of costs, notwithstanding its success in the litigation[201]' 1. The Applicant seeks its costs of $4,620.00 in obtaining a Geotechnical report. During the hearing the applicant gave evidence that it had met with the respondent in March 2016 to try and resolve the dispute. A further attempt to resolve the dispute without additional costs was made in May 2016. The obtaining of the Geotechnical report was required after directions were made by the Tribunal on 12 May 2016 and the parties had been unable to successfully resolve the dispute. 2. The respondent submits that it should not have to pay the applicant's costs because in April 2016 it had carried out soil testing at its own cost and had not sought compensation for the testing from the applicant. The respondent argues that it should not have to pay twice for testing. 3. Because Rule 38 of the NCAT Rules applies to these proceedings, it is not necessary for the Tribunal to find special circumstances under Section 60 of the NCAT Act. 4. The Tribunal has published its Reasons for Decision in this matter. Those Reasons indicate that the Applicant was successful in these proceedings. 5. Having had regard to the submissions of the parties, and in accordance with the principles set out in Oshlack v Richmond River Council, there is no reason in my view why the successful party in these proceedings, the Applicant, should not receive an award of costs in its favour. 6. The Applicant seeks costs in the amount of $4,620.00 and annexes to its submission copies of the Invoice relating to the costs. The costs relate to the Morrow Geotechnics Pty Ltd report that was obtained by the applicant for the purpose of the hearing and establishing its claim the Tribunal is satisfied that this cost was reasonably incurred, and is not excessive in view of the quantum of the award to the Applicant. The respondent has not provided any evidence of any expert evidence or testing obtained and the cost to the respondent of that testing. I order the Respondent to pay these costs. M Eftimiou General Member Civil and Administrative Tribunal of NSW 5 October 2016 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 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: 02 December 2016