Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Grozdanov & Anor v N&T Buildings Pty Ltd [2017] NSWCATAP 40 Hearing dates: On the papers Date of orders: 24 February 2017 Decision date: 24 February 2017 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President S Thode, Senior Member Decision: (1)The Registrar is directed to alter the text of the notice of decision published on 17 June 2015 in accordance with the direction set out in order 2 below; (2)The order made on 17 June 2015 that: "The orders made on 14 November 2015 are set aside" is amended and the order now is: "The orders made on 14 November 2014 and 11 December 2014 are set aside"; and (3)The Appeal Panel dispenses with a hearing Catchwords: Slip rule, section 63 of the Civil and Administrative Tribunal Act 2013 Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Gould v Vaggelas (1985) 157 CLR 215 L Shaddock & Associates Proprietary Limited v The Council of the City of Parramatta (No. 2) (1982) 151 CLR 590 Texts Cited: None Category: Procedural and other rulings Parties: Appellant - Olga Grozdanov and Nick Grozdanov Respondent – N&T Buildings Pty Ltd Representation: Messrs Kells solicitors for the O and N Grozdanov Messrs Williamson Isabella solicitors for N&T Buildings Pty Ltd File Number(s): AP 14/59866 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: [2015] NSWCAT Date of Decision: 11 December 2014 Before: M Cohen, Senior Member File Number(s): HB 14/25130, HB 14/29694 reasons for decision INTRODUCTION 1. This application was received by the Tribunal by letter dated 31 October 2016 from the solicitors for N and O Grozdanov (the homeowners). Subsequently the Tribunal directed parties to make submissions in writing in December 2016, including submissions as to whether the Appeal Panel is able to deal with the application on the papers without the necessity for a hearing. The substance of the homeowners' application is that they seek to have the orders made by the Appeal Panel on 17 June 2015 amended. 2. The Appeal Panel had made the following orders: 1. The appeal be allowed; 2. The orders made on 14 November 2015 are set aside; and 3. Both proceedings (HB 14/25130 and HB 14/29694) are remitted for rehearing 1. In the course of dealing with this application we noticed that there is a typographical error in order 2 in that the reference to "14 November 2015" should in fact be a reference to "2014". 2. The application bought by the homeowners is that the second order above be amended to include reference to an order made by the Tribunal at first instance on 11 December 2014. In other words, the second order would then read: * The orders made on 14 November 2014 and 11 December 2014 are set aside 1. It is necessary to set out some of the background to this application, which we do in the following paragraphs. 2. The Tribunal at first instance heard both the homeowners' application and the builder's application on 10 November 2014. A decision was delivered on 14 November 2014. The effect of the Tribunal's orders was to require the homeowners to pay the builder a sum of money. The homeowners' claim for damages was dismissed. There were orders made for the homeowners to pay the builder's costs in both proceedings. However, the parties were given leave to make further submissions on the question of costs. 3. The parties made submissions and the Tribunal published a further decision on 11 December 2014. The effect of that decision was to make orders that the homeowners were to pay the builder's costs on an indemnity basis in both proceedings. 4. Subsequently, the homeowners commenced appeal proceedings and the Appeal Panel, made orders on 17 June 2015. The appeal was allowed and the orders made on 14 November 2014 (stated as 2015) were set aside. Both the homeowners' and the builder's proceedings were remitted for rehearing. 5. Both applications were reheard in September 2015. At the rehearing the homeowners' claim was settled in part, but otherwise contested. The builder's claim was settled between the parties. Final orders were published on 20 April 2016. The Tribunal ordered the builder to pay the homeowners the sum of $165,114.00. The builder's claim was dismissed. 6. Subsequently, the Tribunal published a decision concerning costs of the proceedings following the rehearing. That decision was published on 2 June 2016. In respect of the proceedings commenced by the builder, the Tribunal ordered each party to pay their own costs. In respect of the proceedings commenced by the homeowners, the Tribunal ordered the builder to pay the homeowners' costs. 7. An examination of the reasons for decision published on 2 June 2016 reveals that the Tribunal was required to consider Calderbank offers made by the homeowners. The decision records the homeowners made an offer to settle on 7 November 2014 and a second offer was made on or about 9 September 2015. The Tribunal found that it was not unreasonable for the builder to reject the homeowners' offer of 7 November 2014 and 9 September 2015. The Current Application 1. The current application brought by the solicitors for the homeowners states that: In the course of seeking to reach agreement with ... [the builder] in respect to costs, the [builder's solicitors] has raised that Member Cohen made a determination in respect of costs on 11 December 2014 1. The homeowners submit that the Appeal Panel decision indicates that the Appeal Panel: intended to set aside the original decision and any consequent costs orders. It is clear that the indemnity costs order has been made in reliance on the original decision and accordingly where the original decision has been set aside, the indemnity costs order should also have been set aside. Submissions 1. Following the invitation from the Tribunal the following submissions have been received. 2. By letter dated 12 December 2016 the solicitors for the homeowners submitted that the homeowners' application can appropriately be dealt with on the papers and referred to the provisions of s 50(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act). 3. The solicitors for the homeowners referred to s 63 of the NCAT Act which is in the following terms: 63 Power to correct errors in decisions of Tribunal (1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member. (2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct. (3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where: (a) there is an obvious clerical or typographical error in the text of the notice or statement, or (b) there is an error arising from an accidental slip or omission, or (c) there is a defect of form, or (d) there is an inconsistency between the stated decision and the stated reasons. 1. Referring to s 63 as "the slip rule", the solicitors for the homeowners refer to the decision in Gould v Vaggelas (1985) 157 CLR 215 as authority for the proposition that the slip rule is available to amend a costs ruling. The solicitors submit that the decision in Gould included the statement that the court noted the adjusted outcome was "fair and just" and "had the matter been canvased at the time of the hearing... the order now sought would have been made". The homeowners submit that had we, as the Appeal Panel, considered the amended costs order at the time of the appeal hearing, the order that is now being sought would have been made. 2. The solicitors also refer to the decision in L Shaddock & Associates Proprietary Limited v The Council of the City of Parramatta (No. 2) (1982) 151 CLR 590 where the High Court held that the slip rule may extend to omissions resulting from the inadvertence of a party's legal representative. Inadvertence was also a feature of the circumstances in Gould. 3. The solicitors state that in the present case, the amended costs order was not included in the appeal (and thus the Appeal Panel was not aware of it) due to the inadvertence of the homeowners' solicitors. They submit that had the amended costs order been raised, an order setting it aside would have been made as a matter of course given the outcome of the appeal. That would have produced a fair and just outcome of the appeal and would have been an expected outcome had the issue been canvased with the Appeal Panel at the time of the hearing. Builder's Submissions 1. The solicitors for the builder submit that the homeowners did not lodge any appeal in relation to the indemnity costs order made on 11 December 2014. They chose not to appeal that order and simply appealed the prior decision. They submit that the relief sought by the homeowners, to set aside the costs order, is not available under s 63 of the NCAT Act. They submit that if "an owner chooses not to appeal over the indemnity costs order and if there is no argument in relation to that order on the appeal as to the appropriateness or otherwise of the order, then it is not appropriate for the owners to apply under section 63 to now in effect seek to belatedly appeal a costs order with such an appeal now being out of time". The submission goes on to state that the builder does not object to the matter being dealt with on the papers. Our Decision 1. In our view, had our attention been drawn to the costs order made on 11 December 2014 we would have set it aside just as we had set aside the orders made on 14 November 2014. The hearing conducted on 10 November 2014 miscarried requiring a rehearing of both the homeowners' and builder's applications. It is also clear to us that the parties proceeded during the rehearing to deal with the dispute concerning costs upon the basis that not only the costs of the rehearing were to be decided by the Member conducting the rehearing, but also the costs incurred during the initial proceedings which were the subject of the orders made on 14 November 2014 and 11 December 2014. That is clear from the references the Member made to the Calderbank offer made on 7 November 2014. 2. Accordingly, it is clear to us that both the parties and the Member conducting the rehearing did not regard there to be in place at the time of the rehearing any costs orders at all. On one view, there is no need to set aside the costs order made on 11 December 2014 because it was implicitly and in substance, if not explicitly, set aside. 3. It follows that we do not agree with the submission made by the solicitor for the builder that somehow the order made on 11 December 2014 remains effective. 4. However, in order to make the position clear, we are of the view that it is appropriate to amend the order we made on 17 June 2015 as requested by the homeowners' solicitors. We accept the accuracy of the propositions put forward by the homeowners' solicitors that the slip rule may be utilised in circumstances where it is necessary to make an adjustment to the existing order so as to make a position "fair and just", and where "had the matter been canvased at the time of the hearing... the order now sought would have been made". 5. This matter falls within three of the examples referred to in s 63(3) of the NCAT Act in that the error concerns: 1. An obvious typographical error in referring to "14 November 2015" rather than "14 November 2014" (s 63(3)(a)); 2. An error arising from an accidental slip or omission (s 63(3)(b)). In this case, the solicitors for the homeowners state the need to set aside the decision of 11 December 2014 was not raised due to inadvertence; and 3. An inconsistency between the stated decision and the stated reasons (s 63(3)(d)). In this case we decided that the orders made on 14 November 2014 should be set aside and the proceedings reheard. It would be inconsistent given that decision to allow the costs decision to remain in place given that costs were awarded on the basis that the homeowners were wholly unsuccessful in their proceedings, which was a decision set aside on appeal. 1. Accordingly, we find that there is an obvious error in the text of the decision and we direct the Registrar accordingly. 2. We are satisfied pursuant to the provisions of s 50 of the NCAT Act that we may make an order without the necessity for a hearing on the basis that we are satisfied that the issues for determination are able to be adequately determined in the absence of the parties by considering their written submissions. Orders 1. The Appeal Panel makes the following orders: 1. The Registrar is directed to alter the text of the notice of decision published on 17 June 2015 in accordance with the direction set out in order 2 below; 2. The order made on 17 June 2015 that: "The orders made on 14 November 2015 are set aside" is amended and the order now is: "The orders made on 14 November 2014 and 11 December 2014 are set aside"; and 3. The Appeal Panel dispenses with a hearing. 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: 24 February 2017