Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Indorato v Ottaviano t/as Transbuild Construction [2019] NSWCATAP 156 Hearing dates: On the papers Date of orders: 26 June 2019 Decision date: 26 June 2019 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President J Kearney, Senior Member Decision: (1) The application for an order for costs of the appeal to be paid by the appellant is refused Catchwords: Costs Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Texts Cited: Nil Category: Costs Parties: Nerina Idorato (Appellant) Mario Ottaviano trading as Transbuild Construction (Respondent) Representation: Counsel: N Idorato (Appellant self-represented) P Bambagiotti (Respondent) Solicitors: G Leculier Sydney Solicitors (Respondent) File Number(s): AP 19/07483 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 22 January 2019 Before: T Simon, Senior Member File Number(s): HB 16/35086 REASONS FOR DECISION Background 1. This decision concerns an application by the builder (the respondent to the appeal) for an order that his costs of the appeal be paid by the homeowner (the appellant). 2. This application follows publication of our decision on 6 May 2019 to dismiss the homeowner's appeal. At first instance the homeowner had obtained an order that the builder was to pay her the sum of $33,068.05 and in the appeal, the homeowner sought an order that an additional amount of $18,693.00 should have been included in the order. There were two items making up that amount, particulars of which are set out in our appeal decision. The Builder's Submissions on Costs 1. The builder submits that costs of the appeal are to be determined by reference to s 60 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act), that is special circumstances must be established for the builder to obtain a costs order. By reference to the criteria set out in s 60(3), the builder submits: 1. The homeowner conducted the appeal in a way that unreasonably prolonged the appeal – given that the fundamental criteria for seeking leave to appeal was not addressed (s 60(3)(b)); 2. The appeal had no tenable basis (per s 60(3)(c)) because the homeowner did not address the criteria for the grant of leave; 3. The arguments that the homeowner put before the Appeal Panel were needlessly complex because of her insistence on revisiting arguments pressed before the Tribunal at first instance instead of addressing the issues relevant to the appeal. The builder relies upon s 60(3)(d); 4. The builder relies upon s 60(3)(e) and submits that the appeal was misconceived and lacking in substance; 5. The relevant principles which are necessary to address in order to obtain leave were set out in Collins v Urban [2014] NSWCATAP 17 and were not sufficiently addressed by the homeowner; 6. Special circumstances are circumstances that are out of the ordinary but do not have to be extraordinary or exceptional: see Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120; and 7. Although the Tribunal has a discretion, it must be exercised by reference to judicial principles. The homeowner's failure warrants an order that she pay the builder's costs of the appeal on the ordinary basis. Homeowner's Submissions 1. The homeowner has supplied written submissions but in view of the decision we have reached, it is not necessary to consider them. Consideration 1. We are of the opinion that there are no special circumstances warranting an order for costs of the appeal to be made. Accordingly, there will be no order with the result that each party should pay their own costs of the appeal. Our reasons for this conclusion are set out in the following paragraphs. 2. The builder correctly submits that the provisions of s 60 of the NCAT Act apply in this instance. This means that each party must pay its own costs, but that the Tribunal may award costs "only if it is satisfied that there are special circumstances warranting an award of costs" (s 60(2)). 3. We reject the builder's submissions that the homeowner unreasonably prolonged the appeal proceedings. The homeowner's appeal submissions may be described as circumlocutious. Notwithstanding that, the homeowner predominately relied upon the Sch 4, cl 12 leave grounds, and therefore she faced the need to explain why the two additional amounts sought to be made the subject of a favourable order were justified on the basis of the evidence, that necessitated some analysis of the evidence. 4. We also reject the builder's submission that the appeal had no tenable basis (per s 60(3)(c)). Although the homeowner's submissions were rejected, we noted that the homeowner was able to point to some evidence in support of her contentions. It is not the case that the appeal had no tenable basis, was misconceived or lacking in substance. The submission relying upon s 60(3)(e) is also rejected. 5. We acknowledge that the homeowner's appeal did not appear to satisfy the requirements for the exercise of the discretion to grant leave (see Collins v Urban) such as to identify an issue of principle, a question of public importance, or an injustice which is reasonably clear. However, the appeal did seek to argue that the Tribunal had made a factual error that was unreasonably arrived at and to that extent, the homeowner sought to address one of the criteria for the grant of leave. 6. In all the circumstances, we are not satisfied that the appeal involves circumstances fairly described as out of the ordinary or special. Orders 1. The Appeal Panel makes the following order: 1. The application for an order for costs of the appeal to be paid by the appellant is refused. ********** 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. 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 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: 26 June 2019