Owners Corporation SP 82076 v Taricon Pty Ltd [2017] NSWCATCD 61

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Owners Corporation SP 82076 v Taricon Pty Ltd [2017] NSWCATCD 61 Hearing dates: On the papers Decision date: 14 July 2017 Jurisdiction: Consumer and Commercial Division Before: L Pearson, Principal Member Decision: (1) A hearing on costs is dispensed with in accordance with s 50(1)(c) of the Civil and Administrative Tribunal Act 2013.

(2) The applicant is to pay the respondent's costs of the proceedings from 29 September 2016, as agreed or assessed. Catchwords: COSTS: Application dismissed - Jurisdictional issue – Application by respondent for costs Legislation Cited: Home Building Act 1989 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Latoudis v Casey [1990] 170 CLR 534 Oshlak v Richmond River Council [1998] HCA 11 Owners Corporation SP 82076 v Taricon Pty Ltd [2017] NSWCATCD 37 Ruddock v Vadarlis [2001] FCA 1865 Thomson v Chapman [2016] NSWCATAP 6 Category: Costs Parties: Owners Corporation SP 82076 (Applicant) Taricon Pty Ltd (Respondent) Representation: Counsel: Mr N Silva (Applicant) Solicitors: Mr J Karacan, Hutchison Lawyers (Applicant) Mr D Indevar, O'Brien Lawyers (Respondent) File Number(s): HB 16/13982 Publication restriction: Nil

reasons for decision 1. The substantive proceedings are a building claim made under the Home Building Act 1989 (the HB Act), lodged on 17 March 2016. On 29 September 2016 the matter was adjourned to allow the parties to seek legal advice in relation to jurisdiction, the presiding Tribunal Member noting that the application may have been lodged out of time. At a further directions hearing on 27 October 2016 the matter was adjourned for hearing on the issue of jurisdiction. 2. Evidence was tendered and the respondent's oral submissions were heard on 20 December 2016. The applicant subsequently provided written submissions in support of its position that the application should not be dismissed on the jurisdictional issue on 17 January 2017 and the respondent provided written submissions in reply on 3 February 2017. 3. On 3 May 2017 the application was dismissed on the basis that the application having been made outside the time specified in s 18E of the HB Act, the Tribunal has no jurisdiction to hear and determine the claim: Owners Corporation SP 82076 v Taricon Pty Ltd [2017] NSWCATCD 37. The orders made included, as foreshadowed at the hearing on 20 December 2017, orders providing for submissions on any application for an order for costs, including that if either party wished to be heard in person that party should notify the Registrar. 4. On 17 May 2017 the Tribunal received an application by the respondent for an order for its costs from the date of commencement of the proceedings, or in the alternative, from 29 September 2016 when the applicant was placed on notice of the jurisdictional issue. The applicant provided written submissions in reply on 1 June 2017, submitting that no order for costs should be made so that each party bear its own costs. Neither party requested a hearing. 5. Both parties' submissions were based on whether or not there were special circumstances warranting an order for costs, pursuant to s 60(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). On 22 June 2017 the Tribunal invited the parties to make any further submissions addressing rule 38 of the Civil and Administrative Tribunal Rules 2014 (the NCAT Rules), with the respondent to provide any further submissions by 28 June 2017 and the applicant by 30 June 2017. That invitation included the statement that there having been no request for a hearing the issue of costs would be determined on the papers. The respondent provided written submissions on 28 June 2017; no further submissions have been received from the applicant.