Staniland v Integrity Homes Pty Ltd [2016] NSWCATCD 96

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Staniland v Integrity Homes Pty Ltd [2016] NSWCATCD 96 Hearing dates: 23 September 2016 Decision date: 20 December 2016 Jurisdiction: Consumer and Commercial Division Before: J A Ringrose, General Member Decision: 1. The respondent is to pay 65% of the applicants' costs as agreed or assessed pursuant to Division 11 of Pt 3.2 of the Legal Profession Act 2004. Catchwords: Special circumstances entitling payment of costs. Power to award costs – indemnity costs Category: Costs Parties: Applicants: Robert Staniland and Kristine Staniland Respondent: Integrity New Homes Pty Ltd t/as Integrity New Homes (No 3) Representation: Counsel: Mr Hicks of Counsel for the applicant Mr Justice of Counsel for the respondent Solicitors: Nexus Law for the applicant Wilde Legal for the respondent File Number(s): HB 13/50125 Publication restriction: Nil

Reasons For Decision 1. In about October 2011 the applicants entered into a home building contract with the respondent for the construction of a residence at [****]Road, New Lambton. The works were completed in September 2012 and a Building Application (HB13/12810) was filed on 5 March 2013 claiming costs of rectification of defects and reimbursement of some items. 2. Those proceedings were listed for a full day mediation on 19 July 2013 and orders were made to resolve issues between the parties including the carrying out of certain rectification work and the payment of monies by the respondent to the applicant. 3. The present application was filed on 24 September 2013 after certain items of rectification work had allegedly not been completed by the respondent. The parties were initially self-represented but in January 2014 parties were granted leave to have legal representation. 4. The preliminary or interlocutory hearing relating to the interpretation of rectification orders made on 19 July 2013 was initially listed before me on 28 October 2014 then on 30 January 2015. Final orders were made on 3 August 2015 declaring that rectification of concrete areas included demolition and reconstruction. The proceedings were thereafter stood over to a directions hearing so that the remaining issues could be determined. Costs of the proceedings at that stage were reserved to be determined in conjunction with any order for costs which may have been made for the whole proceeding. 5. The respondent lodged an appeal which was determined by the Appeal Panel on 23 October 2015. Cost orders were made in that appeal following submissions from both parties on 17 December 2015. The Appeal Panel was satisfied that there were special circumstances which justified the builder being required to pay the owners' costs of the Appeal as agreed or assessed with costs after 19 October 2015 to be on an indemnity basis. 6. Proceedings were listed for final determination on 16 March 2016 and after evidence and submissions had been concluded an order was made on 15 July 2016 requiring the respondents to pay the applicants a sum of $26,902.17. The matter was then stood over to a further date to be fixed by the Registrar to enable both parties to make submissions in relation to costs of the proceedings.