Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Veroc Pty Ltd v Evaross Pty Ltd [2017] NSWCATAP 57 Hearing dates: On the Papers Date of orders: 13 March 2017 Decision date: 13 March 2017 Jurisdiction: Appeal Panel Before: A P Coleman SC, Senior Member S Thode, Senior Member Decision: (1) The Appellant is to pay the Respondent's costs of the appeal as agreed or assessed. Catchwords: APPEAL: COSTS no question of principle. Legislation Cited: Civil and Administrative Tribunal Act, 2013 (NSW) Civil and Administrative Rules, 2014 (NSW) Cases Cited: Johnson T/As One Tree Constructions & Ors v Lukeman & Anor [2017] NSWCATAP 45 Category: Costs Parties: Veroc Pty Ltd (Appellant) Evaross Pty Ltd (Respondent) Representation: Counsel: J Young (Appellant) Mr Davie (Respondent) Solicitors: King Christopher & Associates (Appellant) Peter Merity (Respondent) File Number(s): AP 16/12532 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 10 November 2015 Before: P Boyce, Senior Member File Number(s): HB 13/62098 & HB 14/36216 REASONS FOR DECISION Background 1. On 25 August 2016 the Appeal Panel published its reasons for decision in this appeal ([2016] NSWCATAP 189). The appeal was dismissed. The Appeal Panel also made consequential orders in respect to the payment of moneys held by the respondent's solicitors. Directions were also made for any party wishing to make submissions about costs to file and serve submissions within 14 days from the date of the reasons. 2. Each party filed submissions with respect to costs. The respondent filed its submissions on 1 September 2016 and the appellant on 8 September 2016. Regrettably, due to an oversight in the registry, the submissions were not forwarded to the Appeal Panel until February 2017, hence the delay in providing these reasons. On discovering the error, the Appeal Panel requested that the registry write to the parties explaining the situation. That was done. 3. For the reasons below, we have decided that the appellant should pay the respondent's costs of the appeal as agreed or assessed. The Appeal 1. The appeal concerned proceedings arising out of home building works undertaken by the appellant at the respondent's premises. On 21 May 2015 an agreement was reached between the parties to resolve the proceedings. The agreement was embodied in consent orders made by the Tribunal. 2. The consent orders provided a mechanism by which the outstanding building works would be completed by the appellant so as to be certified by an agreed certifier. If, as was the case, the works were not undertaken in the required manner, the consent orders provided that each party would obtain 3 quotes from appropriately licenced builders to complete the works and the respondent would make an application to the Tribunal for a money order for the average of the quotations so obtained. 3. In the events that happened, there was a dispute about the operation of the consent orders which was resolved by the Tribunal. The respondent then sought a money order based on the quotes it had obtained pursuant to the consent orders. There was a dispute as to whether the appellant had obtained appropriate quotations so as to be considered in the averaging exercise contemplated by the consent orders. 4. The Tribunal found in favour of the respondent and ordered the appellant to pay the sum of $241,884 to the respondent. 5. The consent orders also dealt with how a sum of $23,931.28, being an amount claimed by the appellant to be owing to it by the respondent pursuant to the building contract, was to be dealt with. 6. On appeal, the appellant, inter alia, attacked the Tribunal's findings with respect to the amount to be paid to the respondent, with respect to the quotes obtained by the parties and challenged the Tribunal's jurisdiction to have dealt with the matter in the way it did or at all. Each of the grounds of appeal were rejected by the Appeal Panel. As such, the appellant was wholly unsuccessful on the appeal. 7. There were attempts made after the hearing of the appeal but before the Appeal Panel's reasons for decision were handed down, to resolve how the $23,931.28 being held by the respondent's solicitor was to be dealt with. Whilst final agreement could not be reached, there was substantial agreement as to how that amount was to be paid. That agreement was reflected in orders 2, 3 and 4 of the Appeal Panel. Submissions as to Costs 1. The appeal was lodged after 1 January 2016. The proceedings involved a claim for more than $30,000. Accordingly, by reason of Rules 38A and 38 of the Civil and Administrative Tribunal Rules (2014) despite s 60(2) of the Civil and Administrative Tribunal Act (2013) the Appeal Panel has the discretion to award costs without needing to be satisfied there are special circumstances. (for a more lengthy discussion of the operation of the abovementioned statutory provisions dealing with costs in the Tribunal, see Johnson T/AS One Tree Constructions & Ors v Lukeman & Anor [2017] NSWCATAP 45 at [5]-[9]). 2. The parties agreed in their written submissions that, in this case, the starting position with respect to the discretion as to costs is that costs should follow the event. The appellant submits that, subject to two exceptions, it should pay the respondent's costs of the appeal. 3. The first exception is with respect to the orders 2, 3 and 4 of the Appeal Panel. These are the orders dealing with how the money held by the respondent's solicitor is to be dealt with. The appellant submits that each party should pay their own costs of and incidental to the making of those orders (dealt with in [48]-[57] of the Appeal Panel's reasons). It is submitted that those orders do not form part of the "event" in respect of which the appellant failed. Rather, it is submitted, those orders are incidental and were required to bring finality to the proceedings and neither party succeeded or failed on their respective positions. 4. The second exception is in respect to the costs of the submissions on costs. It is submitted that "it could hardly have been contested that costs follow the event in this case". As such, the appellant submits that the respondent could have approached the appellant with a view to agreeing appropriate orders rather than preparing "detailed closely-typed submissions". Disposition 1. We reject the appellant's arguments. 2. As to the first exception relied upon by the appellant, whilst it is true that the orders dealing with the payment of the money held by the respondent's solicitor were incidental to the matters argued on the appeal, they were, as the appellant concedes, necessary to bring about finality to the appeal and the proceedings themselves. The money was held by the respondent's solicitor because the appellant had made a claim that these amounts were outstanding under the building contract. The consent orders made provision for the holding of these funds and how they were to be distributed if the work required to be done by the appellant was undertaken and the works were certified. It was common ground that the works were not so completed by the appellant and could not be certified. 3. The failure of the appellant to undertake the works as it had agreed to do in the consent orders was the genesis of the hearings before the Tribunal which led to the findings made the subject of appeal by the appellant. In such circumstances, where the appellant has otherwise failed in all aspects of its appeal and it was necessary to make orders with respect to the distribution of the moneys held, we do not think it is appropriate to attempt to dissect from the costs, the costs incurred in dealing with this issue. 4. As to the second exception, in circumstances where the appellant concedes that it "could hardly be contested" that costs would follow the event, there was nothing preventing the appellant from contacting the respondent to make the offer that it should pay the costs of the appeal. There is nothing before us to indicate such an offer was made. The respondent and its advisers cannot be criticised for preparing submissions which addressed the relevant statutory provisions dealing with the position of costs in the Tribunal. Orders 1. For the above reasons, the order we make is: 1. The appellant is to pay the respondent's costs of the appeal as agreed or assessed. 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 Amendments 20 April 2017 - Typographical error in party name 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: 20 April 2017