Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Leung v Alexakis (No 2) [2018] NSWCATAP 78 Hearing dates: 21 July 2017 Date of orders: 29 March 2018 Decision date: 29 March 2018 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member G Walker, Senior Member Decision: 1. A hearing of the costs application of the respondent is dispensed with pursuant to s 50 (2) of the Civil and Administrative Tribunal Act, 2013. 2. The time for the respondent to lodge an application for costs is extended to 22 January 2018. 3. The appellants are to pay seventy five per cent (75%) of the respondent's costs of the appeal, such cost to be as agreed or assessed under the relevant legal costs legislation. Catchwords: COSTS- discretion to award costs. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Cases Cited: Thompson v Chapman [2016] NSWCATAP 6 Category: Costs Parties: Appellant: Wilfred Leung and Sio Hung Lo Respondent: Angela Alexakis Representation: On the papers Solicitors: Snelgroves (Appellants) Mavrakis & Associates Lawyers (Respondent) File Number(s): AP 17/19544 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 31 March 2017 Before: C Paull, Senior Member File Number(s): HB 15/38098 reasons for decision Introduction 1. On 5 January 2018 the Appeal Panel published orders and reasons for decision in Leung v Alexakis [2018] NSWCATAP 11 (appeal decision). 2. In that decision, the appeal was allowed in part and the orders made on 31 March 2017 in application HB 15/39098 were varied. 3. In making those orders, the Appeal Panel made a conditional order, order 3, that each party was to pay their own costs of the appeal. That order was conditional upon either party making an application for costs seeking a different order to that which had been proposed. Such application was required to be made within 14 days from the date the original decision was published. 4. The respondent to the appeal made such an application. That application was lodged on 22 January 2018. The written submissions in support of its application for costs were dated 19 January 2018. 5. The appellants did not provide any written submissions in response to the application. Upon enquiry from the Registry, the Appeal Panel was informed the appellants did not intend to provide any submissions in reply. 6. Following some further correspondence from the appellant, the Appeal Panel was concerned that the appellant was under a misapprehension as to the effect of the order originally made and/or that the parties should have a chance to deal with the fact that the application for costs was apparently made out of time. Directions were made to permit further submissions. Submissions were subsequently received from the respondent seeking an extension of time and supporting its earlier application for costs. No submissions were received from the appellant. Consideration 1. The respondent accepts that is appropriate to dispense with a hearing on costs and that an order should be made under s 50(2) of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act). We will make that order. 2. The application for costs was made 22 January 2018. It was 3 days out of time. The respondent explains that the delay, which is minor, occurred because of the time of year when the appeal decision was published. We accept this explanation. No submissions in opposition were received and we cannot see any prejudice if time is extended. We will make that order. 3. The proceedings to which this appeal related involve claims under the Home Building Act 1989 (NSW) (HB Act) where the amount in dispute was more than $30,000. Consequently, r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (Rules) applied to the proceedings at first instance. Rule 38(2)(b) provides that, despite s 60 of the NCAT Act, the Tribunal may award costs in proceedings even in the absence of special circumstances warranting such an award. 4. Because the "provisions that applied to the determination of costs in the proceedings of the Tribunal at first instance (the first instance costs provisions) differed from those set out in section 60 of the Act", r 38 applies to the determination of costs in the appeal: see r 38A. 5. In Thompson v Chapman [2016] NSWCATAP 6, the Appeal Panel said at [68]-[72]: 68 Each of Regulation 20 of the CTTT Regulation and Rule 38 provide a general discretion in respect to the award of costs. 69 The starting point in exercising such discretion is that the "usual order for costs" is that a successful party should be entitled to an order for costs in their favour: see Latoudis v Casey [1990] 170 CLR 534 per Mason CJ at 554 and Oshlack v Richmond River Council per McHugh J at 97. 70 The reason for such an order is that it is appropriate for the party who incurred costs caused by the other party in litigation to be reimbursed. Further, an award of costs is by way of an indemnity to the successful party and not as punishment of the unsuccessful party: see Latoudis v Casey per Mason CJ at 543 and McHugh J at 567 and in Oshlack v Richmond River Council per Brennan CJ at 75. 71 Where there is a general discretion for costs there is no absolute rule that, absent disentitling conduct, a successful party is to be compensated by the unsuccessful party nor is there any rule that a successful party might not be ordered to bear the costs of an unsuccessful party: see Oshlack v Richmond River Council per Gaudron and Gummo JJ at 88 and Kirby J at 121 – 123. 72 The factors to be considered in awarding costs in a particular case are not to be confined as to do so would constrain the general discretion. However it is clear from the authorities that factors that might influence whether the usual order for costs should apply and, if so, to what extent include: (1) Whether, by reason of the relative success of the parties on different issues and the time taken to determine those that an order for costs based on issues should be made: see for example Bostick Australia Pty Ltd v Liddiard (No 2) [2009] NSWSCA 304; and (2) Whether, by reason of the nature of the proceedings the usual rule should otherwise be displaced in whole or in part: see Oshlack v Richmond River Council per Gaudron and Gummo JJ at 41 – 44. 1. In the original decision we said at [163]-[166]: Costs 163 The appellants have had some success in the appeal in that the original orders had been varied and the Appeal Panel has concluded that the Tribunal failed to exercise a discretion arising from the operation of s 48MA of the HB Act. In addition, the appellants have been successful to the extent that the Appeal Panel has determined to modify the orders originally made by the Tribunal. 164 On the other hand, the appellants have failed in that part of the claim concerning whether or not s 48MA applies to circumstances in which the holder of an owner-builder permit is liable to a successor in title for defective residential building work under s 18C of the HB Act. 165 On balance, we have formed the preliminary view that each party should pay their own costs of the appeal. 166 If either party contends that a different order should be made in relation to the appeal proceedings they will have an opportunity to make appropriate submissions. 1. The respondent says an order for costs should be made in her favour on an ordinary basis. 2. First, the respondent says the appellant has reserved its position in relation to appealing the decision of the Appeal Panel and has refused access to the respondent's tradesmen to carry out the works, the subject of the orders made by the Appeal Panel. The respondent has annexed correspondence to the lawyers for the appellants dated 8 January 2018 seeking access to the property to carry out rectification work and an email in response from the lawyers for the appellant. That correspondence confirms that the appellants were wishing to obtain Counsel's advice concerning a further appeal and that the appellants may be overseas and had not yet been sent a copy of the decision from the lawyers. In those circumstances, a request was made by the lawyers for the appellants that the respondent refrain from attending site to carry out any work until the lawyers of the appellant could advise the respondent's lawyer of the appellant's intentions. 3. In our view, whether the appellants intend to appeal the decision and/or whether the appellants have complied with the orders made by the Appeal Panel on 5 January 2018 is irrelevant to what costs order should be made in the present case. Costs are to compensate the successful party, not to punish non-compliance with Tribunal orders. 4. Secondly, the respondents submits that her first submission in the appeal asserted that s 48MA of the HB Act was applicable and that she had "accepted that the decision of the Tribunal below resulted in a fair and commercial result", a matter repeated in subsequent submissions. 5. It is correct that the Appeal Panel determined that s48MA applied to the present dispute. This, the respondent says was always her position. 6. However, this submission glosses over two substantial issues in the appeal. These were whether the Tribunal was correct to conclude that it was mandatory to make a work order and whether the Tribunal had properly exercised the applicable discretion. The respondent sought to maintain that the Tribunal properly exercised its discretion. In doing so, the respondent maintained the reasons for decision demonstrated that the Tribunal recognised it had a discretion to exercise, embarked on an appropriate fact finding process, and made an appropriate decision in relation to this issue. This position was maintained in supplementary submissions which the respondent filed at the conclusion of the appeal in consequence of leave granted by the Appeal Panel. 7. The Appeal Panel did not accept the respondent's submissions on this aspect. Rather, the Appeal Panel determined the Tribunal was incorrect in its conclusion that s 48MA mandated that a work order must be made. The Appeal Panel said there was a discretion to be exercised and that the Tribunal failed to exercise such discretion. Consequently, the Appeal Panel re-exercised that discretion having provided the parties with an opportunity to provide supplementary submissions on this aspect of the appeal: appeal decision at [137]-[142], [149] and following. 8. In our view, these matters count against a costs order being made in favour of the respondent for all of her costs of the appeal. 9. On the other hand, it is correct that the respondent always maintained that s 48MA applied in the present case. Further, the appellants were unsuccessful in their primary position, namely that a money order should be made in the sum of $180,600.97. In this regard, we accept that the respondent was predominantly successful. 10. Weighing these matters, and notwithstanding our preliminary view, we have come to the conclusion that an order for costs should be made in favour of the respondent to permit her to recover 75% of the costs assessed on an ordinary basis. Orders 1. The Appeal Panel makes the following orders: 1. A hearing of the costs application of the respondent is dispensed with pursuant to s 50 (2) of the Civil and Administrative Tribunal Act, 2013. 2. The time for the respondent to lodge an application for costs is extended to 22 January 2018.. 3. The appellants are to pay seventy five per cent (75%) of the respondent's costs of the appeal, such cost to be as agreed or assessed under the relevant legal costs legislation. ********** 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: 29 March 2018