Civil and Administrative Tribunal New South Wales Medium Neutral Citation: B & M Mitchell Pty Ltd v Mikell Investments Pty Ltd & Divlist Pty Ltd t/as Contemporary Homes [2018] NSWCATAP 63 Hearing dates: Not applicable Date of orders: 14 March 2018 Decision date: 14 March 2018 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President R Hamilton SC, Senior Member Decision: 1. A hearing concerning whether a costs order should be made is dispensed with; and 2. The appellant, B & M Mitchell Pty Ltd is to pay the respondent's costs of the appeal to the respondents, Mikell Investments Pty Ltd & Divlist Pty Ltd t/as Contemporary Homes on a party/party basis as agreed or assessed. Catchwords: Costs – Rules 38A and 38 of the Civil and Administrative Tribunal Rules 2014 Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Latoudis v Casey (1990) 170 CLR 534 Owners Corporation SP 79417 v Trajcevski (No.2) [2017] NSWCATAP 173 Category: Costs Parties: B & M Mitchell Pty Ltd (Appellant) Mikell Investments Pty Ltd & Divlist Pty Ltd t/as Contemporary Homes (Respondents) Representation: Counsel: J Nathan(Appellant) J Young (Respondents) Solicitors: Campbell Paton & Taylor Legal (Appellant) Blackwell Short (Respondents) File Number(s): AP 17/42412 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 1 September 2017 Before: K Rickards, General Member File Number(s): HB 16/32023 reasons for decision Introduction 1. Our decision in this appeal was published on 1 February 2018. The order made by us was that the appeal is dismissed and directions were made for the parties to file and serve submissions concerning costs. The dispute arose out of a contract between a builder (Mikell Investments Pty Ltd & Divlist Pty Ltd t/as Contemporary Homes) and a homeowner (B & M Mitchell Pty Ltd). The homeowner brought the appeal. As a consequence of the dismissal of the appeal, the builder now seeks costs. The legal representatives for the builder have filed submissions, but no submissions have been received from the homeowner. 2. We are satisfied that we are able to determine the question of costs in the absence of the parties by considering the written submissions. We are also satisfied that the parties have been afforded an opportunity to make submissions about the builder's application for costs. We determine that a hearing is not required and we will order that a hearing be dispensed with (see s 50 of the Civil and Administrative Tribunal Act 2013 (NCAT Act)). 3. We propose to make an order as requested by the builder that the homeowner pay the builder's costs of the appeal. Our reasons are set out in the following paragraphs. 4. The first instance application resulted in an order that the homeowner was to pay to the builder the sum of $35,989.11 and further that the homeowner was to pay the builder's costs. The homeowner then appealed, and as stated above, the appeal was dismissed. 5. The NCAT Act and the Civil and Administrative Tribunal Rules 2014 (the Rules) deal with costs in several places. Section 60 contains a provision by which each party is to pay the party's own costs, but by s 60(2) the Tribunal may award costs only if it is satisfied that there are special circumstances warranting an award of costs. 6. Rule 38A of the Rules makes provisions concerning costs for appeals lodged on or after 1 January 2016. This appeal was lodged after that date. Rule 38A essentially provides that despite s 60 of the NCAT Act, the Appeal Panel for an internal appeal to which r 38A applies, must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal. 7. Rule 38 provides that despite s 60 of the NCAT Act, the Tribunal may award costs in proceedings allocated to the Consumer and Commercial Division of the Tribunal even in the absence of special circumstances warranting such an award if the amount claimed or in dispute is more than $30,000.00. 8. Here, the amount claimed (and awarded) was more than $30,000.00 and accordingly, this Appeal Panel is able to award costs even in the absence of special circumstances. 9. It is also relevant to record that s 60 of the NCAT Act is subject to r 38A. That is the result of s 35 of the NCAT Act (see Owners Corporation SP 79417 v Trajcevski (No.2) [2017] NSWCATAP 173 (16 August 2017). 10. It is an uncontroversial principle that the rationale of awarding costs is to partially reimburse the successful party for costs incurred. The intention is not to punish the unsuccessful party, but rather to compensate the successful party for costs incurred (Latoudis v Casey (1990) 170 CLR 534). 11. We agree with the builder's submission that none of the homeowner's submissions on the appeal was accepted, whereas the builder's submissions were accepted. The builder was the successful party. 12. Accordingly, in our view, it is appropriate to make an award of costs in favour of the builder in respect of the costs incurred by the builder on the appeal. Rule 38 provides the power to make such an order. Orders 1. The Appeal Panel makes the following orders: 1. A hearing concerning whether a costs order should be made is dispensed with; and 2. The appellant, B & M Mitchell Pty Ltd is to pay the respondent's costs of the appeal to the respondents, Mikell Investments Pty Ltd & Divlist Pty Ltd t/as Contemporary Homes on a party/party basis 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 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: 14 March 2018