Matterson v Sunrise Pools Australia Pty Ltd (No. 2) [2019] NSWCATAP 152

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Matterson v Sunrise Pools Australia Pty Ltd (No. 2) [2019] NSWCATAP 152 Hearing dates: 5 June 2019 Date of orders: 20 June 2019 Decision date: 20 June 2019 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member D Charles, Senior Member Decision: 1. Set aside Orders 1 and 2 of the Orders made by the Tribunal at first instance on 15 February 2017. 2. The appellant is to pay 10% of the respondent's costs of the appeal on the ordinary basis, as agreed or assessed, otherwise, the parties are to bear their own costs of the appeal. 3. Pursuant to s 81 (1) of the Civil and Administrative Tribunal Act, Orders 2 and 3 of the Orders made by the Tribunal at first instance on 27 April 2017 are set aside, and in substitution for such orders the appellant is to pay 62% of the respondent's costs of the proceedings in file number HB 16/15856, the subject of the decision issued by the Tribunal on 15 February 2017, on the ordinary basis, as agreed or assessed. Catchwords: COSTS – costs of appeal – each party enjoyed success on the appeal – where appellant successful on a new ground permitted at hearing of appeal – indemnity costs sought - measurement of success on appeal– costs of hearing at first instance when second trial of one issue led to a different result than at first trial - fresh evidence at second trial. Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Board of Examiners v XY [2006] VSCA 190 Deacon v National Strategic Constructions Pty Ltd [2018] NSWCATAP 31 Hanna v BOS Holdings Pty Ltd (No 2) [2019] NSWCATAP 73 Luther v Sagor & Co [1921] 3 KB 532 Matterson v Sunrise Pools Australia Pty Ltd [2017] NSWCATAP 211 Miller v Miller [1978] HCA 44; (1978) 141 CLR 269 Category: Costs Parties: Brett Matterson (Appellant) Sunrise Pools Australia Pty Ltd (Respondent) Representation: Counsel: Mr Lloyd (Appellant) Mr O'Connor (Respondent)