Garg v Empre Construction Pty Ltd (No.2)

(1) a lift of the stay on order 1(1) of the Tribunal's 23 July 2025 decision which enabled him to enforce the $14,300.00 money order made in his favour; and

(2) an order that the Tribunal at first instance had failed to exercise jurisdiction in relation to items 2 - 9 of the 18 October 2024 Building Commission Report and an order for those items be remitted for hearing.

1. The owner also submits that the successful outcomes as referred to above were only achieved through the filing of his cross appeal for which the payment of a filing fee of $519.00 was required. Since the owner claims $519.00 as the filing fee in the appeal he commenced, we find that his costs application relates to that appeal, not the builder's appeal.
2. The builder submits that the owner was not successful in his appeal. It refers to a number of the claims made by the owner in the appeal which were not successful. It also refers to the stay of order 2 made by the Tribunal at first instance which was not lifted.

Was the owner the successful party in his cross appeal

1. The question to be asked in determining which was the successful party was considered by Ward J in Quest Rose Hill Pty Ltd v White [2010] NSWSC 1190 (at [67]), to include the question "Had the plaintiff won anything of value or anything he could not have won without fighting the action through to a finish?"
2. We find that the owner was the successful party in his appeal and in the appeal brought by the builder. In his appeal he was successful in obtaining an order that items 2 - 19 of the Building Commission Report dated 18 October 2024 be remitted to the Tribunal at first instance for hearing. This order could not have been obtained without commencing and pursuing his cross appeal.
3. The owner was also successful in the builder's appeal in that he opposed the appeal and was successful in obtaining an order that the appeal was dismissed. His success also extended to obtaining a lift of the stay on the order which entitled him to the payment of $14,300.00.

1. The general rule in relation to costs in the Tribunal is that unless special circumstances are established, the parties must pay their own costs.
2. Section 60(1) of the NCAT Act states:

'Each party to proceedings in the Tribunal is to pay the party's own costs.'

1. In connection with special circumstances, s60(2) of the NCAT Act states:

'The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.'

1. Rule 38 of the Civil and Administrative Tribunal Rules 2014 (the Rules) modifies the application of s60 in proceedings before the Consumer and Commercial Division of the Tribunal, as the proceedings at first instance were. Rule 38(2)(a) provides that in proceedings where the amount claimed or in dispute is more than $30,000, the Tribunal may award costs in the absence of special circumstances. Rule 38(2) states:

'Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if -

(a) the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under clause 10(2) of Schedule 4 to the Act in relation to the proceedings, or

(b) the amount claimed or in dispute in the proceedings is more than $30,000.'

1. The amount claimed by the owner in the proceedings at first instance exceeded $30,000 as found in the first instance decision at [91].
2. Therefore, rule 38(2) of the Rules was the costs provision relevant to the Tribunal proceedings at first instance.
3. In relation to the costs of the appeal, rule 38A of the Rules states:

38A Costs in internal appeals

(1) This rule applies to an internal appeal lodged on or after 1 January 2016 if the provisions that applied to the determination of costs in the proceedings of the Tribunal at first instance (the first instance costs provisions) differed from those set out in section 60 of the Act because of the operation of:

(a) enabling legislation, or

(b) the Division Schedule for the Division of the Tribunal concerned, or

(c) the procedural rules.

(2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal.

1. Since the provisions that applied to the costs of the proceedings at first instance differed from section 60, rule 38A applies.
2. An Appeal Panel stated in Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [57], in applying rule 38(2)(b) in relation to the appeal, as required by rule 38A, the 'amount claimed or in dispute' is the amount in dispute on appeal, not the amount in dispute in the proceedings at first instance.
3. What was the 'amount claimed or in dispute' in 2025/00322774 Guidance for this question was given in Allen v TriCare (Hastings) at [59] as follows:

'What was actually in dispute in each of the present appeals can generally be ascertained from the grounds of appeal set out in each appellant's notice of appeal'

1. The Notice of Appeal in 2025/00322774 stated that order 1(1) which required the builder to pay the owner $14,300.00 should be varied by increasing it by $22,185.00. As a result, we find that rule 38A does not apply in this costs determination because the amount claimed or in dispute in 2025/322774 was less than $30,000.00.
2. Nonetheless s60 of the NCAT Act will apply. The owner has not identified special circumstances which apply to enliven our discretion to make a costs order in his favour under s60(2) of the NCAT Act. Accordingly, we are bound to apply s60(1) of the NCAT Act and order that each party to proceedings in the Tribunal is to pay the party's own costs. We will make an order to that effect.

(1) A hearing on costs is dispensed with pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013.

(2) Each party to appeal proceedings 2025/00322774 is to pay their own costs of the appeal.

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.