Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rekrut v Champion Homes Sales Pty Ltd [2018] NSWCATAP 162 Hearing dates: On the papers Date of orders: 05 July 2018 Decision date: 05 July 2018 Jurisdiction: Appeal Panel Before: Dr R Dubler SC, Senior Member S Higgins, Senior 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 appeal in AP18/10975 is allowed. (3) The Orders made on 12 February 2018 by Senior Member Boyce in proceedings HB 13/66604 are set aside. (4) Any claim for costs in respect of proceedings HB 13/66604 is remitted to the Consumer and Commercial Division to be determined in conjunction with the remittal ordered by the Appeal Panel on 13 September 2017 in AP 17/09469 and AP 17/04738. (5) If either party seeks an order for costs of the appeal, the following directions apply: (a) The applicant for costs ("costs applicant") must file and serve any costs application, including submissions and any evidence in support, within 7 days of the date of these orders. (b) The respondent to the costs application is to file and serve any submissions and evidence in reply within 14 days from the date of these orders. (c) The costs applicant is to file any submissions in reply within 21 days from the date of these orders. (d) Any submissions are to include submissions on the issue of whether an order should be made pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), dispensing with a hearing of the costs application. Catchwords: APPEAL – costs – costs order made by Tribunal after Appeal Panel has allowed appeal in part – whether costs order should be set aside Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Cases Cited: Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 348 Category: Principal judgment Parties: Adam Rekrut (First Appellant) Sandra Scott (Second Appellant) Champion Homes Sales Pty Ltd (Respondent) Representation: Counsel: M McMahon (Appellants) Solicitors: G Vardas (agent for the Respondent) File Number(s): AP18/10975 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and commercial Division Citation: N/A Date of Decision: 12 February 2018 Before: P Boyce, Senior Member File Number(s): HB 13/66604 Reasons for Decision Introduction 1. The appellants ("the owners") made claims against the respondent ("the builder") under the Home Building Act 1989 (NSW) ("HB Act"). Exactly three years later, on 23 December 2016, the Tribunal in the first instance ordered that the builder pay to the owners $63,586.59. 2. Neither party was content with this decision. Both appealed in 2017. The parties' appeals (AP17/04738 and AP17/09469) were determined by orders dated 3 September 2017. Both the owners and the builder enjoyed partial success: see [2017] NSWCATAP 187. Some of the amounts ordered at first instance were altered and other claims were remitted to the Tribunal to be reconsidered. 3. It was at this point that matters took an unfortunate turn. Despite the appeals being allowed in part, Senior Member Boyce, who heard the matter at first instance, delivered judgment on 12 February 2018 on the question of costs of the proceeding at first instance ("the Costs Decision"). 4. The owners have lodged the present appeal against the Costs Decision and the parties have filed written submissions. Consideration Should a hearing on costs be dispensed with? 1. By s.50(2) of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act") the Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: 1. afforded the parties an opportunity to make submissions about the proposed order; and 2. taken any such submissions into account: see s.50(3) of the NCAT Act. 1. The parties were given an opportunity to make submissions concerning whether the appeal could be determined on the papers. By their final submissions, neither party objected to that course. We are satisfied that the issue of costs can be adequately determined in the absence of the parties by considering the parties' written submissions. The parties would be put to unnecessary expense if required to argue the costs application at a hearing. The order under s.50(3)(c) of the NCAT Act has accordingly been made. Should the Costs Decision be set aside? 1. The Tribunal at first instance considered the claim for costs on the basis of the extent to which the appellants were successful in their claim at first instance. Without consideration of what had occurred on the appeals, the Tribunal ordered that the builder pay one half of the owners' costs of the proceedings at first instance and also vacated an interlocutory costs order made on 13 March 2015 in favour of the owners. 2. As noted above, the Appeal Panel has altered some of the amounts awarded at first instance and other claims were remitted to the Tribunal to be reconsidered. Senior Member Goldstein is currently determining those claims. 3. The builder contends there was no error in the decision of the Senior Member and that appeal should be dismissed. However, the essential basis for the Costs Decision and the decision to award 50% of the costs to the appellants has been undermined by the Appeal Panel's decisions. Any determination of an appropriate costs award in respect of the proceedings needs to take account of the measure of success of the parties following the ultimate conclusion of the claims currently being considered before Senior Member Goldstein. 4. Similar circumstances arose before the Court of Appeal in the case of Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 348. The Court of Appeal delivered its principal judgment on 14 October 2010 ([2010] NSWCA 268), but just before judgment was given on the appeal, the primary judge at first instance, Nicholas J, on 7 October 2010 made costs orders. The Court of Appeal stated (at [2]): The costs order made by the primary judge proceeded on the basis of the primary judge's principal decision that is being set aside, and so they too should be set aside in their totality as a matter incidental to the setting aside of the principal decision. 1. By parity of reasoning, it must follow that upon the partial setting aside of the principal decision of the Tribunal at first instance and the remittal of various claims for reconsideration, that the costs orders made by Senior Member Boyce should be set aside and the question of the costs of the proceedings remitted for reconsideration following determination of all of the claims. 2. Finally, Senior Member Boyce, in addition (at [68]), decided that the previous interlocutory costs order made by the Tribunal on 13 March 2015 should be set aside, "in light of the order now made based on the decision of 23 December 2016". Again, given the partial setting aside of the decision of 23 December 2016 and the decision to remit certain claims for reconsideration, it is also appropriate that that order of Senior Member Boyce be set aside as well. Orders 1. The Appeal Panel makes the following orders: 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 appeal in AP18/10975 is allowed. 3. The Orders made on 12 February 2018 by Senior Member Boyce in proceedings HB 13/66604 are set aside. 4. Any claim for costs in respect of proceedings HB 13/66604 is remitted to the Consumer and Commercial Division to be determined in conjunction with the remittal ordered by the Appeal Panel on 13 September 2017 in AP 17/09469 and AP 17/04738.The appellant is to pay the costs of the respondent in both appeals, such costs to be agreed or assessed on an ordinary basis. 5. If either party seeks an order for costs of the appeal, the following directions apply: 1. The applicant for costs ("costs applicant") must file and serve any costs application, including submissions and any evidence in support, within 7 days of the date of these orders. 2. The respondent to the costs application is to file and serve any submissions and evidence in reply within 14 days from the date of these orders. 3. The costs applicant is to file any submissions in reply within 21 days from the date of these orders. 4. Any submissions are to include submissions on the issue of whether an order should be made pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), dispensing with a hearing of the costs application. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar ********** 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 09 July 2018 - Order 4 amended to remove direction related to Appellant paying costs. 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: 09 July 2018