Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dyldam Developments Pty Ltd v Mewing (No 2) [2019] NSWCATAP 258 Hearing dates: On the papers Date of orders: 17 October 2019 Decision date: 17 October 2019 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President F Corsaro SC, Senior Member Decision: (1) A hearing of the application to vary the costs order made 14 August 2017 is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013. (2) The application is dismissed. (3) No order for costs in respect of the application. Catchwords: COSTS – transfer of proceedings to a court – time to assess costs of unsuccessful appeal Legislation Cited: Civil and Administrative Tribunal Act, 2013 Uniform Civil Procedures Rule 2005 Cases Cited: Nil Texts Cited: Nil Category: Costs Parties: Dyldam Developments Pty Ltd (Appellant) Robert Mewing and Ivetta Mewing (Respondents) Representation: Counsel: A Avery- Williams (Appellant) M Castle (Respondents) Solicitors: Madison Marcus Law Firm (Appellant) Gillis Delaney Lawyers (Respondents) File Number(s): AP 17/03061 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: 23 December 2016 Before: C Paull, Senior Member File Number(s): HB 16/08854 reasons for decision 1. On 14 August 2017 the Appeal Panel dismissed an appeal against an interlocutory order in which the Tribunal transferred proceedings HB 16/08854 to the District Court of New South Wales. The Appeal Panel published reasons for decision being Dyldam Developments Pty Ltd v Mewing [2017] NSWCATAP 170 (Primary Decision). 2. The Appeal Panel ordered the appellant to pay the respondents' cost of the appeal. In doing so, the Appeal Panel gave leave to either party to apply if a different costs order was sought. 3. The respondents, in whose favour the costs order was made, made no application for an alternative for order. 4. However, the appellant, while accepting it should pay the costs of the appeal, sought a variation of the order to the effect that any cost be assessed at the conclusion of the proceedings in the court. This application was made on 1 September 2017. The form of order sought was: The appellant is to pay the respondents' cost of the appeal, however the operation of this order is suspended until be determination of the District Court Proceedings. 1. In this regard, the appellant relied on r 42.7 of the Uniform Civil Procedure Rules, 2005 (NSW). Sub rule 2 provides: Unless the court otherwise orders, costs referred to in sub rule (one) do not become payable until the conclusion of the proceedings. 1. The appellant submits that: The order does not remove the [respondents'] entitlement to costs however closely aligns to the intent of the New South Whiles Civil Procedural system and removed ambiguity around the timing of its enforcement which the [appellant] believes was the Appeal Panel's intention. 1. As will be evident from the above, the application was made some time ago. It has not been dealt with due to an administrative error of the Tribunal. This occurred in circumstances where the respondent made no submissions in reply that the application and it was not until further correspondence was received by the Tribunal in 2019 from the appellant that the Appeal Panel became aware that the application remained unresolved. 2. The parties were contacted and the appellant confirmed its position that it wished to have its application dealt with. Again there was no response from the respondents, a letter having been sent by the Registrar dated 18 September 2019 requiring any response to be provided within 14 days. 3. The original directions made by the Appeal Panel on 14 August 2017 permitting the present application to be made required the parties to also make submissions about whether an order should be made dispensing with a hearing. Neither party has suggested a hearing is required. Accordingly, we propose to make an order under s 50(2) of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act). 4. The question for determination is whether an order should be made to suspend assessment of any costs arising from the unsuccessful appeal in the Tribunal until the hearing of the court proceedings. 5. While we are permitted to make such an order, in our view it is inappropriate to do so in the present case. 6. A transfer order was made to transfer the proceedings originally commenced in the Tribunal to a court having jurisdiction to hear the dispute. That order was appealed. As stated in the Primary Decision, the appeal was unsuccessful. 7. The Appeal Proceedings have been finalised. Costs associated with those proceedings are distinct from and separate to the proceedings at first instance which was the subject of the transfer order. There is no reason why the assessment of the costs of the appeal should be delayed. 8. Any assessment of costs in the appeal proceedings will be by reference to the issues raised in the appeal, again matters which, in our view, will be independent of the issues to be dealt with in the substantive proceedings. 9. For these reasons the application should be dismissed. 10. In relation to the costs of the unsuccessful application, we will not make any order. The respondents chose not to participate in the application having made no submissions in 2017 and have provided no response to the Tribunal's correspondence dated 18 September 2019. Orders 1. Accordingly, the Appeal Panel makes the following orders: 1. A hearing of the application to vary the costs order made 14 August 2017 is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013. 2. The application is dismissed. 3. No order for costs in respect of the application. ********** 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: 17 October 2019