Dwyer Building Group Pty Ltd v Spicer; Spicer v Dwyer Building Group Pty Ltd (No 3)

1. In addition to the material that was previously before the Appeal Panel in relation to these appeals, I had the following submissions received from the parties on the costs issue:

(1) Homeowner's application for costs with submissions in support dated 24 July 2024.

(2) Builder's submissions on costs dated 7 August 2025.

(3) Homeowner's submissions on costs in reply dated 15 August 2025.

(4) Homeowner's further submissions dated 4 September 2025.

(2) 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.

(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:

(a) afforded the parties an opportunity to make submissions about the proposed order, and

(b) taken any such submissions into account.

(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

1. In this case both parties have indicated their agreement to costs being determined on the papers. Having reviewed all the materials I am satisfied that this is a matter that can be determined in the absence of the parties by considering the materials lodged by them. I therefore dispense with a hearing.

Concerning the costs of the appealed proceedings

1. The homeowner has requested that in addition to the costs of the appeal, the Appeal Panel also determine the application for reserved and special costs of the proceedings which are the subject of this appeal. Those costs have been the subject of submissions to the presiding member in the appealed proceedings, with the decision to be made on the papers, since late last year. The homeowner suggest that the reasons those costs have not been decided to date is because of the existence of the appeals. Therefore, the homeowner asks that the Appeal Panel also determine the costs of the proceedings below.
2. The builder opposes this saying that it is not appropriate for a matter to be decided "for the same application to be before two different decision makers at the same time." The homeowners response was that the Appeal Panel should make the decision instead of the Tribunal. In my view, as there has been no decision made with respect to those costs, the Appeal Panel does not have jurisdiction to consider them on appeal.
3. I note that inquiries made of the Tribunal Registry concerning the costs decision, reveal that as a result of the filing of the appeals, the outstanding costs decision was removed from the members list of outstanding decisions in error. I am advised that error has now been remedied.

1. The parties are in agreement that the Appeal Panel has power to award costs with respect to both appeals in accordance with rile 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules). The amounts claimed in each appeal exceeded $30,000. As a result, s 60 of the NCAT Act does not apply to these appeals and the Appeal Panel may award costs in relation to them under rule 38A. The usual rule in such circumstances is that costs follow the event. In Rekrut and Scott v Champion Homes Sales Pty Ltd; Champion Homes Sales Pty Ltd v Rekrut and Scott [2018] NSWCATAP 97 an Appeal Panel summarised its understanding of costs following the event, at [21] -[23] :

"21 Generally, the exercise of an unfettered power to award costs involves costs "following the event" unless there are factors which militate against the successful party being awarded all of the party's costs - Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [67] and [69]; [1998] HCA 11.

22 Generally the "event" refers to the event of the claim or the appeal, as the case may be, and may be understood as referring to the practical result of a particular claim or appeal -Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15].

1. In issue between the parties in this case is whether costs orders should be made, and, if so, whether the Tribunal should make an order for costs following an analysis of which issues the parties were successful on, or instead take a global approach to the determination of costs in the appeals. In Bostick Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 the Court of Appeal explained, at [38]:

38 The principles governing the making of an order as to costs so as to reflect the time taken in dealing with a particular issue in which the successful party in the proceedings or on the appeal did not succeed were reviewed by this Court in Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373. Those principles may be summarised as follows:

• Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported).
• In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24]. A similar approach is adopted on appeal.
• If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 at [27].
• Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: State of New South Wales v Stanley [2007] NSWCA 330 at [18] per Hislop J (with whom Beazley and Tobias JJA agreed).
• A separable issue can relate to "any disputed question of fact or law" before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34].
• Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James v Surf Road Nominees Pty Ltd (No 2), citing Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261 at 272.

These principles were applied in City of Canada Bay Council v Bonaccorso Pty Ltd (No 3) [2008] NSWCA 57 at [22] and most recently in Turkmani v Visvalingham (No 2) [2009] NSWCA 279.

1. The homeowner says that she had been substantially successful in both proceedings and that she should receive her costs of both appeals. In her initial submissions, prior to the publication of No 2, which increased the damages payable to her $286,550.87, she advanced an alternative proposition whereby she argued that she should receive her costs of her appeal and 90% of the costs of defending the builder's appeal. This was to allow for the fact that the builder's appeal was entirely successful on ground 3(c). That submission was not renewed when the damages were increased following the publication of No 2.
2. The builder submits that there should be no order for costs made on either appeal. In doing so, the builder says that there were three issues in its appeal and that it was substantially successful in respect to each of them. These were:

(1) Whether, in renewal proceedings, it was not open to the Tribunal to determine defects not claimed in the original proceedings (issue 1).

(2) Whether the Tribunal asked the wrong question when it determined that the builder had failed to comply with the work order within 6.5 months (issue 2).

(3) Whether the Tribunal erred when it failed to take into account the builder's claimed entitlement to a reasonable extension of time under the contract (issue 3).

1. The builder submitted that it successful its appeal with respect to issue 1, and substantially successful with respect to issue 2 and 3. It also accepted that, despite its success on issue 3, the Appeal Panel's subsequent assessment of the extension of time claims resulted in an outcome which negated "the substantial success which the builder had on the Builder's Appeal." It submitted that all the costs occasioned by the parties were incurred with respect to the issues raised in the builders appeal, not the extensions of time. Consequently, the builder said there should be no order for the costs of its appeal.
2. In response, the homeowner takes issue with builder's oversimplification of the issues in that appeal. She also points to the fact that the parties consented to the Appeal Panel redetermining the extension of time issues, and that the builder made submissions about them.
3. With respect to the homeowner's appeal. the builder submits that it raised two issues; the homeowner's entitlement damages to the slab and her liability to pay $46,074.00 regarding invoice 1323. The builder was successful on the first issue, while the homeowner was successful on the second. Therefore, it argues there should be no order as to costs of the homeowner's appeal.

1. Following the Appeal Panel decisions the homeowner has received an order in her favour for $286,550.87, some $35,000 more than she was originally awarded in the appealed decision.
2. The suggestion that the builder's appeal related to three issues reflects a proposition originally made by the homeowner in the appeals; one which the Appeal Panel rejected. We thought that analysis overly simplified the questions in issue, and proceeded to deal with each of the builder's grounds - some containing sub-grounds - separately, as well as the homeowner's seven grounds. The reality is that while the appeals raised separate grounds, the outcome in some had an impact on the outcome in others. Where the builder was totally successful, its gains were minimal and overwhelmed by those of the homeowner.
3. In my view an analysis of the outcome of the appeals, on an issue basis, in order to determine costs, would be a complex and artificial exercise. It would fly in the face of the fact that, as the Appeal Panel previously observed, the homeowner has been substantially successful in the appeals, which were heard together. The grounds of appeal, while differing, related to the same factual matrix, the same contract and the same residential building works. They required calculations in which the ultimate outcome was arrived at by setting the outcome of each appeal against the other, to arrive at a single, practical conclusion, befitting the single contract in issue.
4. While there were mixed grounds of appeal advanced by both parties, some of which were successful and some not, there were none that was so dominant and separable as to merit individual attention when deciding costs. While both appeals were allowed, the reality is that the homeowner was substantially successful in a practical and financial sense, while the builder's limited successes did not result in any practical gain.
5. In my opinion the homeowner is entitled to her costs of both appeals.

(1) A hearing on the issue of the costs of both appeals is dispensed with.

(2) Dwyer Building Group Pty Ltd ACN 617 566 944 is to pay Deanna Spicer's costs of appeals numbered 2024/00355189 and 2024/00392586 as agreed or assessed.

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.