Javam v Islam

Background

1. The parties (together with the Owner's wife) entered into a building contract (the "Contract") dated 3 October 2014 whereby the Builder agreed to build a residence for the Owner. The Owner's wife was not a party to the proceedings nor this appeal despite being a party to the Contract, but nothing turns on her omission and the Builder has not sought to join her.
2. Disputes arose between the parties.
3. The Owner commenced proceedings against the Builder in the Local Court of NSW on 4 November 2016. In those proceedings the Owner claimed that he had advanced a personal loan of $20,000 to the Builder, the loan was repayable on demand, a demand had been made and the Builder had refused to repay that loan.
4. In his Defence filed 8 February 2017 the Builder denied there was a loan. Rather, the Builder alleged that the parties had agreed that the Owner would provide to the Builder $20,000 as a "cost contingency for the construction" of the Owner's home, and the $20,000 was only repayable if there were no variations to the Contract or if the final cost of construction did not exceed the provisional allowance provided for in the Contract.
5. Put another way, the Builder was alleging that the $20,000 was security for, or an advance payment for, potential additional costs, and was not a loan. If those additional costs were incurred, the $20,000 would be applied against them. If they were not incurred, the $20,000 would be repaid.
6. Thus, although the parties agreed that $20,000 had been paid by the Owner to the Builder, they differed as to the legal rights and obligations attaching to that payment.
7. The Builder also alleged that the Owner had failed to pay for variations to the timber frame and failed to pay for the Builder's margin for additional works, together totalling $45,500. Thus, the Builder asserted he was entitled to keep the $20,000.
8. The Builder filed a Cross-claim on the same day as he filed his Defence. In that Cross-claim the Builder pleaded the advancement of the $20,000 as a cost contingency, pleaded the variations and Builder's margin referred to above, claimed the Owner had failed to pay for those latter matters, and said that therefore there was balance owing from the Owner to the Builder of $25,500.
9. The Owner then filed an Amended Statement of Claim on 27 March 2017 adding a claim for $15,983 being, speaking broadly, the total of alleged agreed variations for which the Owner had paid sub-contractors directly and for which the Builder had agreed to balance against the final Contract price. In that respect the Owner alleged that the varied Contract price was $355,983 and he had paid a total of $372,079 to the Builder and sub-contractors. Therefore, the Owner claimed the difference between those two figures (being $16,096) from the Builder. This was later referred to as the "overpayment claim" and we shall refer to it similarly.
10. The Builder filed an Amended Cross-claim on 2 May 2017 adding a claim for $68,000 for alleged loss of income said to have arisen from the Owner "taking away" the Builder's eligibility to utilise the Home Owner Warranty Insurance taken out for this Contract.
11. The Builder also filed an Amended Defence on 2 May 2017. The amendments are not presently relevant, suffice to say that the assertions regarding the $20,000 made in the earlier Defence (outlined at [6] above) were maintained.
12. The matter was listed for hearing in the Local Court on 29 August 2017.
13. On that day the Builder, who up to until then had been legally unrepresented, sought an adjournment until 6 November 2017. It can be inferred that the Owner had been prepared to proceed with the hearing on that day.
14. The adjournment was granted, and the Builder was ordered to pay the Owner's costs thrown away by reason of the adjournment. The costs were ordered to be paid at the conclusion of the proceedings (Local Court transcript of 6 November 2017 at p.32.46-.49).
15. On 6 November 2017 the now legally represented defendant applied to have the proceedings transferred to the Tribunal. For reasons not presently relevant Price LCM granted that application, and the Builder was ordered to pay the Owner's costs assessed at $4,000.
16. The Owner's claim against the Builder (set out in the Amended Statement of Claim) became Tribunal proceedings HB 17/50731, and the Builder's claim against the Owner (set out in the Amended Cross-claim) became Tribunal proceedings HB 17/50847.
17. The first directions hearing in the Tribunal for both matters took place on 23 January 2018. A question of jurisdiction was raised in relation to the $20,000. The parties eventually found their way to the Supreme Court, and we will come to that in due course, but in his Honour's decision in those Supreme Court proceedings, Islam v Javam [2018] NSWSC 1430, Harrison J, when referring to this so-called jurisdictional issue, said at [6]: "The really silly part of that so-called dispute resides in the fact that the defendant had admitted the payment of the $20,000 as part of the building agreement, so that the plaintiff would have been unarguably entitled to a credit for that amount in the final wash up of the competing contentions arising on the defendant's cross-claim."
18. Despite that fact, the Owner became concerned that the Tribunal had no jurisdiction to determine his claim for repayment of a loan. Harrison J said, at [8], that this concern appeared to be related to some unfortunate remarks by the Tribunal member (at the first directions hearing) to the effect that the Tribunal may have had no jurisdiction in relation to "loans".
19. After those "unfortunate" remarks the Owner "obviously, but … erroneously" (per Harrison J said at [9]) filed an application to transfer both proceedings back to the Local Court in an attempt to ensure that whichever body heard the parties' disputes, it had jurisdiction to deal with all of the disputes.
20. On 23 April 2018 the Tribunal dismissed the Owner's application to transfer the proceedings back to the Local Court upon the basis that the Local Court had conclusively determined that the Tribunal was the correct forum to determine both claims.
21. By summons seeking leave to appeal to the Supreme Court, filed on 9 May 2018, the Owner sought to challenge the original decision of Price LCM made on 6 November 2017 ordering the transfer of the proceedings from the Local Court to the Tribunal. The hearing of that summons took place before Harrison J on 18 September 2018.
22. During submissions at that hearing his Honour pressed the Builder about his position in relation to the $20,000 claim by the Owner. The entirety of the relevant exchange is set out in his Honour's judgment in Islam v Javam [2018] NSWSC 1430 at [11], but his Honour highlighted certain passages of the transcript spoken by the Builder's solicitor. Those highlighted passages were: "The credit is not in dispute." "We can't be heard to say that the Tribunal can't deal with it. We say that the credit is there, as has been the defence all along." "What has been transferred is perfectly proper and should be transferred, we say my friend's misconception is whether he gets the advance as a credit or a loan or what it is and it doesn't matter. It is conceded that it is a credit. The credit stands to his account. This appeal is nonsense."
23. Immediately after quoting those parts of the transcript, his Honour said at [12]: "Having regard to all these matters, it seems to me that the preferable and obvious course is for the present proceedings before me to remain on foot but on hold while the proceedings in the Tribunal continue to finality there. ... If common sense is to prevail, the parties acting reasonably could be expected to agree to return to the Tribunal and litigate their dispute under their building contract, safe in the knowledge that the plaintiff gets credit for his $20,000 against whatever is the outcome of that contest."
24. The proceedings therefore remained in the Tribunal. They were heard on 25 February and 9 April 2019. They were decided on 5 July 2019.
25. In a detailed and carefully considered decision spanning some 35 pages and 85 paragraphs the Tribunal: 1. dismissed the Owner's overpayment claim (in the Owner's proceedings) on the basis that (at the risk of oversimplification) the Tribunal found the Owner had waived the overpayment (see at [55]-[57] of the Tribunal's reasons); 2. dismissed the entirety of the Builder's claims in the Builder's proceedings; and 3. ordered the Builder to pay the Owner $20,000 in the Owner's proceedings.
26. There is no appeal from those orders.
27. On 5 September 2019 the Supreme Court matter returned to Harrison J to determine the costs of that application - Islam v Javam [2019] NSWSC 1147.
28. In that application for costs the Owner submitted he was required to commence the Supreme Court proceedings because there was some uncertainty whether his claim for the $20,000 was justiciable in the Tribunal.
29. The Builder submitted that it was clear from the Local Court decision, from his defence and from later comments made by the Tribunal member that the Tribunal had jurisdiction or, at the very least, that the Owner would be entitled to a credit for the $20,000 whatever else may have been decided with respect to the other issues to be determined. The Builder maintained that, irrespective of the characterisation of the $20,000: "It would have been credited in the final calculation of claims in the Tribunal such that it was unnecessary to consider the characterisation of the $20,000 and subsequently unnecessary to appeal [from] the Local Court decision."
30. Relevant to a submission made by the Builder on this appeal to the effect that his defence had made clear that the $20,000 was never in dispute, and in relation to the concession that the $20,000 would be credited to the Owner in one way or the other, his Honour said: "[12] Unfortunately, that concession, extracted in my view somewhat begrudgingly from the defendant by me, could and should have been made much sooner and in clear terms. It was never made that plain in the defendant's pleadings and the admission of the advance that was made as early as 1 May 2017 in his points of defence filed on that day continued in terms to tie the sum of $20,000 to the building work that he performed. Indeed, in his points of defence filed on 2 March 2018, not only did the defendant not plainly concede the credit of $20,000 to which the plaintiff was entitled, the defendant specifically alleged that the plaintiff's "pleadings fail[ed] to address the cause of action being relied upon and the statutory provisions which give rise to the jurisdiction to allow the Tribunal to make orders." In that sense, the defendant was unambiguously putting in issue the jurisdiction of the Tribunal to deal with the plaintiff's claim for money lent. [13] In my opinion, the plaintiff would have been entitled in the Tribunal to assert the credit which the defendant ultimately conceded. Even if there had been no jurisdiction in the Tribunal to deal with the plaintiff's $20,000 loan, the defendant had participated in the transfer of the proceedings from the Local Court to the Tribunal with knowledge of his protest that such a course may deprive him of a forum in which to recover it. If the defendant had intended to take any different course, it was incumbent upon him to say so in clear terms when the matter was in the Local Court. The defendant did not do so until the matter actually reached me, and then only in the course of what passed between me and the defendant's legal representative in the terms extracted in my judgment: see Islam v Javam [2018] NSWSC 1430 at [11]." [Emphasis ours]
31. We observe in passing that the above passages were not drawn to our attention by the Builder's legal representative on this appeal. They should have been. They amounted to findings by a superior court directly adverse to the Builder's submissions on this appeal that his defence made clear the $20,000 was never in dispute.
32. Returning to his Honour's judgment, his Honour also found some fault in the Owner in that his Honour considered the Owner should have perceived that the Builder could not be heard to say (in the Tribunal) that the Tribunal did not have jurisdiction to deal with the claim for the $20,000 because the Builder had been the party which sought the transfer in the first place.
33. In all of those circumstances his Honour ordered that there be no order for costs of the Supreme Court proceedings.
34. Subsequent to his Honour's decision the Tribunal received submissions from each party as to the appropriate costs orders that each party submitted ought to be made in relation to the Tribunal proceedings decided on 5 July 2019.
35. The Owner submitted that the Builder should pay his costs on the ordinary basis up to 1 June 2017, and on the indemnity basis from 2 June 2017. The Builder submitted the appropriate order was that each party should pay his own costs.
36. The Tribunal decided the costs issue on 10 December 2019. It is from that decision that this appeal comes.

The Tribunal's Cost Decision

1. The Tribunal found that the Owner had claimed the sum of $36,096 in his proceedings, the Builder had claimed $45,500 in his proceedings, and therefore the "amount claimed or in dispute in the proceedings" was greater than $30,000.
2. In light of those findings the Tribunal held that r 38(2)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the "NCAT Rules") applied so as to displace the operation of s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act"), a clearly correct decision given the holding to that effect in Allen v Tricare (Hastings) Ltd [2017] NSWCATAP 25 at [15]-[19].
3. This meant that costs were at large and were to be determined on general law principles without the need for the existence of special circumstances as required by s 60.
4. The Tribunal considered the history of the proceedings and several well-known authorities on general law costs principles. Those authorities included Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 and well-known passages from the judgments of McHugh J at [67] and Kirby P at [134] to the effect that the costs should usually follow the event i.e. a successful party ought ordinarily be awarded costs.
5. The Tribunal considered the various Calderbank offers made by each of the parties and rejected submissions by both parties that they should receive more favourable costs orders because of those offers. No ground of appeal involves those findings.
6. The Tribunal, at [6] of its costs reasons, held that the Owner was the successful party in the Owner's proceedings and was the successful party in the Builder's proceedings.
7. In relation to the Owner's proceedings the Tribunal held that the Owner had received an order in his favour for $20,000, and thus was successful in those proceedings, and rejected the Builder's submissions that the Owner had been guilty of disentitling conduct.
8. The Tribunal concluded its reasons by saying that the Owner was the successful party "in the proceedings" (meaning, in context, the two separate proceedings) and was entitled to an order that the Builder pay his costs in both proceedings and in the Local Court on the ordinary basis, such costs to be agreed or assessed.

Grounds of Appeal

1. The Builder appeals on the following grounds: 1. the Tribunal erred in finding that the amount claimed or in dispute in the Owner's proceedings (HB 17/50731) were more than $30,000 in accordance with r 38(2)(b); 2. the Tribunal erred in finding that the Owner was the successful party in both proceedings; 3. the Tribunal failed to adhere to the guiding principle as set out in s 36 of the NCAT Act.

Appeals on Costs

1. The decision under appeal in respect of costs is an ancillary decision as defined in s 4 of the NCAT Act. An appeal is available in respect of ancillary decisions as of right on a question of law and with leave on any other grounds: s 80(2)(b) of the NCAT Act.
2. This is an appeal from a decision on costs on questions of law.
3. Costs decisions are discretionary decisions. In Yu v Cao [2015] NSWCA 276 McColl JA, with whom Sackville AJA and Adamson J agreed, said at [157]: "It was common ground that as the costs order involved the exercise of the s 98 costs discretion, the success of the appeal depended on demonstrating error in the House v R sense. Such error may be demonstrated if the primary judge acted upon a wrong principle, mistook the facts or failed to have regard to material considerations or reached a conclusion which was, on the facts, 'unreasonable or plainly unjust'."
4. Accordingly, error in the House v R (1936) 55 CLR 499; [1936] HCA 40 sense must be established.
5. The last-mentioned type of error, the unreasonable or plainly unjust ground, was further explained in Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61. In that case it was said that the unreasonable or plainly unjust ground only applied where the reasons did not disclose why the impugned orders were made - see at [8] - [11] per Bathurst CJ and Leeming JA.
6. Their Honours also emphasised, at [13], that deference must be shown to the discretionary decisions of the decision maker at first instance. Their Honours said: "On the one hand, appellate intervention in the exercise of a discretion may be available where insufficient weight has been given to something relevant. On the other hand, it is fundamental that deference is to be given by an appellate court to the discretionary decisions of judges at first instance, insofar as it is insufficient for the appellant merely to persuade the appellate court that it would have decided the matter differently. Statute has given a right of appeal to a disappointed litigant, and committed a process known as an appeal to the appellate court. Statute has not conferred a right to a hearing de novo. This is the point made by Heydon JA in Micallef immediately following his Honour's observation that it is insufficient that the appellate court might itself exercise the discretion differently: 'The law committed the exercise of the discretion to Garling DCJ.'"
7. There is an additional consideration. In New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Bell P, with whom Ward JA agreed, held at [77] that an appellate body should not read passages from the reasons for decision the subject of an appeal in isolation from others to which they may be related, should read reasons fairly and as a whole, should not inspect reasons with a fine tooth-comb attuned to identifying error and should provide a degree of tolerance for looseness in the language of the Tribunal, unhappy phrasing of the Tribunal's thoughts or verbal slips.

Ground 1

1. The Builder contends that the Tribunal erred in finding that the amount claimed or in dispute in the Owner's proceedings (HB 17/50731) was more than $30,000 in accordance with r 38(2)(b). This ground appears to contend that the Tribunal below mistook the facts or made a material error of fact.
2. The Builder submitted that he had "admitted the credit of $20,000" in his Defence filed 8 February 2017. He submitted that, in his Points of Defence filed in the Tribunal on 2 March 2018 he had alleged that the $20,000 was: "advanced as a cost contingency for the construction of the dwelling … and (was) only repayable if there were no variations to the Contract or the final cost of construction did not exceed the provisional allowance in the construction contract."
3. This defence was no different in substance to that expressed in the Builder's Local Court Defence (see [6] above) and suffered from the vices identified by Harrison J at [12] of his Honour's judgment which we have quoted at [32] above.
4. The Builder submitted that at the hearing before the Tribunal below the Owner sought to amend his Points of Claim to "formalise the conceded $20,000" and the rest of the hearing concerned the overpayment and Builder's claims.
5. This submission is not entirely accurate. The sound recording is not of the best quality, and the Builder did not provide a transcript of the parts to be relied upon as directed on 28 January 2020, but what is apparent from the sound recording is that the claim for $20,000 was added to the Points of Claim on the day of the hearing, it having been previously deleted from the Points of Claim filed 1 November 2018 (filed approximately seven weeks after judgment was delivered by Harrison J in Islam v Javam [2018] NSWSC 1430).
6. At the hearing the solicitor for the Owner, who also appears for the Owner on this appeal, sought leave from the Tribunal to add the claim for $20,000 to the Points of Claim "to give you a facility to make an order in relation to that $20,000 in relation to what was agreed" in the Supreme Court. That leave was granted. The application was not, as the Builder submitted, formalising a conceded $20,000. It was adding a claim so that an order could be made should the Builder's defences to that claim be rejected.
7. The claim for the $20,000, and the overall claim for approximately $36,000 (being the $20,000 plus the overpayment claim) was contained in the Owner's Local Court Statement of Claim filed on 4 November 2016, the Amended Statement of Claim filed on 27 March 2017, and the Owner's Points of Claim filed in the Tribunal on 6 February 2018. For unexplained reasons, but probably because of mistaken view as to the effect of what was said in the Supreme Court, it was omitted from the Owner's Amended Points of Claim filed on 1 November 2018 before being reinstated at the hearing in the Tribunal below on 25 February 2019.
8. The point of setting out that chronology is to demonstrate that the claim for the $20,000 (making a total claim in the Owner's proceedings to be approximately $36,000) was made in the pleadings and successive versions of the Points of Claim for the whole period of the litigation other than for about six months between November 2018 and May 2019.
9. The other point of note is that the Builder's position as to that $20,000 (whatever that position precisely was) had not changed at any time during the proceedings.
10. The thrust of the Builder's submissions is that the $20,000 was never in "dispute". Therefore, submitted the Builder, the only amount in "dispute" in the Owner's proceedings was the overpayment claim of some $16,000. As this was less than $30,000 r 38(2)(b) of the NCAT Rules did not apply and special circumstances needed to be shown in order to receive an order for costs.
11. We reject the Builder's submissions for three reasons.
12. First, r 38(2)(b) refers to the "amount claimed or in dispute". The Builder's submissions focussed exclusively on whether that amount was "in dispute" but were silent about whether the amount was "claimed".
13. In Allen at [43] the Appeal Panel said: "In the case of an internal appeal, the "amount claimed … in the proceedings" can be determined by considering what orders the appellant seeks on the appeal. If those orders sought include an order that the respondent pay a sum of more than $30,000, expressly or impliedly, then the Tribunal should conclude that the amount claimed in those proceedings was more than $30,000."
14. In these proceedings, other than for the six-month period referred to, the Owner had sought an order for the payment of more than $30,000 and so the amount "claimed" was greater than $30,000 and thus r 38(2)(b) applies.
15. We do not think the omission of the $20,000 from the claim for a six month period out of a total of about three years is of any significance given that it was for a relatively brief period and that, at least between the parties, there was no dispute the Owner was seeking that sum from the Builder irrespective of the way the Points of Claim were worded.
16. Second, we reject the Builder's submission that the amount in dispute was less than $30,000 because, so the Builder submitted, he had always admitted he owed the Owner the $20,000. Harrison J found that the Builder had not admitted that he owed the Owner $20,000 in his defence - see at [12] of his Honour's judgment which we have quoted at [32] above. Even if we were not bound by his Honour's finding, or some form of issue estoppel arising therefrom, we would agree with his Honour's finding.
17. Third, the position adopted by the Builder in relation to this Ground is counter to the position he adopted before the Tribunal below.
18. In his written submissions to the Tribunal below dated 2 August 2019, at [30], the Builder submitted that: "… the Tribunal should exercise its discretion to award costs to the Builder where the amounts in dispute are more than $30,000 in accordance with Section 38 (sic) of the Civil and Administrative Tribunal Rules 2014 (NSW)."
19. It is clear from a reading of the balance of the written submissions that the Builder was referring to both proceedings. That was the Tribunal's understanding because at [28] of its reasons the Tribunal said: "Both parties submit that Rule 38 applies to this costs application, which I accept."
20. A party is not ordinarily permitted to advance a position inconsistent with its position at trial, and we would not allow the Builder to do so on this appeal.
21. The last matter we wish to note is that in his submissions the Builder conflated the two proceedings whereas, as Allen v Tricare holds, the two proceedings are required to be separately considered in relation to costs.
22. The amount claimed or in dispute in the Builder's proceedings was approximately $97,000 being approximately $47,000 for margins and damages for delay to completion of work, and $50,000 for damages for alleged breaches of ss 4 and 18 of the Australian Consumer Law. Clearly the amount claimed or in dispute in those proceeding attracted the operation of r 38(2)(b). We shall discuss this further in relation to Ground 2.

Ground 2

1. The Builder submitted that the Tribunal erred in finding that the Owner was the successful party in both proceedings.
2. The Builder submitted that the $20,000 issue only took a few minutes at the hearing. He then referred to various authorities which are to the effect that it may be appropriate to deprive a successful party of costs where matters upon which that party was unsuccessful took up a significant part of the hearing. The Builder further submitted that both parties were unsuccessful in their substantive claims, the $20,000 was minor and took up very little time at the hearing, and both parties should be ordered to pay his own costs.
3. As mentioned earlier, the Builder conflates the two proceedings contra to the holding in Allen at [37]-[41] that the two proceedings needed to be considered separately.
4. Clearly enough the Owner was the successful party in the Builder's proceedings as the Builder failed completely.
5. The question is whether the Tribunal erred in ordering the Builder to pay the Owner's costs of the Owner's proceedings. There doesn't seem to be any doubt that the Owner was successful in that he received an order that the Builder pay him $20,000.
6. The real complaint by the Builder was that the Tribunal erred in failing to make a separate order in relation to the overpayment claim upon which the Owner lost. The question of a separate order is a different question to success, and the wording of the Builder's ground of appeal in this respect is not apt for the real issue raised in relation to this ground.
7. But be that as it may, it is clear from the Builder's submissions that this was the real issue, and it was addressed in the Owner's submissions, and so we should deal with the real issue raised by the Builder.
8. We enquired of the solicitor representing the Builder on this appeal, more than once, which of the House v R errors the Builder was relying upon in relation to this ground, but we did not receive an answer.
9. It appears to us, unassisted by any submissions from the Builder, that the only potentially applicable House v R error is the unreasonable or plainly unjust ground.
10. As mentioned earlier in these reasons, that ground was further explained in Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd. At [9] of that decision Bathurst CJ and Leeming JA said this: "It is one thing for the reasons given by the primary judge to disclose appellable error. If so, that is addressed by the formulations of principle in the first half of the passage from House v The King. That is not an end of the matter. There may be cases where the reasons do not disclose why the impugned orders were made. In such cases, even though no error of principle or other well-recognised basis for appellate intervention may be discerned on the face of the reasons, an appellate court may nonetheless intervene. The reason is that it may be inferred in light of the result that there was appellable error in the unstated reasons which led to the order. This is plain from the passage when read as a whole (House v The King at 505): 'It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.' "
11. Thus, the occasion to consider whether the discretionary decision was unreasonable or plainly unjust arises only where the reasons do not disclose why the impugned orders were made (or not made as the case may be).
12. That occurred here. The Builder advanced written submissions in support of a separate costs order before the Tribunal below. Those submissions were the subject of a response by the Owner. But the Tribunal's reasons are silent on that that application for a separate costs order.
13. In those circumstances, per Australian Health, we may (not must) intervene and we may (not must) infer that appellable error occurred.
14. In the passage from House v R quoted by Bathurst CJ and Leeming JA at [9] of their Honour's judgment, the plurality of the High Court said that an appellate body may (not must) infer that in some way there has been a failure to properly exercise the discretion if, upon the facts, the result is unreasonable or plainly unjust.
15. Therefore, assuming the Tribunal's reasons are silent as to why the separate costs order was not made, the question is whether, upon the facts of the case, the failure to make a separate costs order was unreasonable or plainly unjust such that we would infer that the Tribunal fell into appellable error. In assessing those matters we must show deference to the discretionary decisions of the decision maker at first instance, and not infer appellable error simply because we may have decided the matter differently.
16. The principal authority the Builder relies upon is Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304.
17. In that case the relevant principles to apply were summarised at [38] in the joint judgment of Beazley, Ipp and Basten JJA. In that passage their Honours said: "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 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 Ltd (No 2) [2007] NSWCA 306 at [24]. A similar approach is adopted on appeal. • … • 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: 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) 26 IPR 261 at 272."
18. Applying those principles, the Builder bears the burden of persuading us that the overpayment claim was clearly dominant or separable, that it took up a significant part of the trial, either by evidence or argument, that the circumstances of the case, assessed by impression and evaluation, justified a separate costs order and that, showing due deference to the discretionary decision of the Tribunal below, the result was unreasonable or plainly unjust and that we should infer the Tribunal fell into appellable error.
19. We accept that the overpayment claim was separable from the $20,000 claim in the Owner's proceedings.
20. In terms of discretionary factors, the Builder submits the overpayment claim was the dominant issue in the Owner's proceedings, and upon which the Builder succeeded. The Builder submits he had always conceded the $20,000 was owed to the Owner, a submission we have previously rejected.
21. The Builder submitted we could assess the amount of time the overpayment claim took up at the hearing (per the second dot point in the quote from Bostik set out at [89] above) by examining various documents. But we do not have all the documents received in evidence by the Tribunal, nor does the length or quantity of documents necessarily correlate with the amount of time devoted to them at a hearing.
22. No other circumstances of the case, viewed against the wide discretionary powers of the Tribunal, were identified by the Builder as supportive of a separate costs order.
23. In response the Owner correctly submits that costs are for the proceedings, not just the hearing. He submits the time at the hearing was dominated by evidence and argument directed to the Builder's proceedings, but other than the submission there was no attempt to quantify that dominance in any different way than that suggested by the Builder.
24. We are not in position to determine what issue took up what amount of time at the hearing. Whilst we have some of the material that was tendered in evidence we do not have the entirety, and it would not be appropriate in this case for us to listen to the sound recording of the hearing (which took some one and a half days) and read the submissions on the substantive issues just to determine what issue took what proportion of the time at the hearing. The cost to the Tribunal of doing so is not, in our opinion, proportionate to the importance and complexity of the subject-matter to justify that expense - s 36(4) of the NCAT Act.
25. The Tribunal member who decided the case is a very experienced senior member of the Tribunal, he had delivered a detailed and carefully considered decision concerning the liability issues spanning some 35 pages and 85 paragraphs and so was well seized of the issues, how much time and effort was devoted to them, how the issues interacted with each other and had the assistance of written submissions on costs.
26. Even if we were persuaded that we would have made a different decision than the Tribunal, we are not persuaded that the decision of the Tribunal to refuse the application for a separate costs order was unreasonable or plainly unjust, nor would be infer that the Tribunal fell into appellable error.

Ground 3

1. The Builder contends that the Tribunal failed to adhere to the guiding principle as set out in s 36 of the NCAT Act.
2. The relevant part of s 36 says that the guiding principle for the NCAT Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
3. The Builder submitted that the real issues in dispute were the overpayment claim and the Builder's proceedings, and not the $20,000. So much may be accepted.
4. The Builder then submits that in making an order for costs in the Owner's favour the Tribunal failed to properly consider the "guiding principle" which, the Builder submitted by way of a quote from Fleet Repairs & Maintenance Pty Ltd v Chief Commissioner of State Revenue [2020] NSWCATAD 48 at [84]: "is generally better served by leaving costs in proceedings before the Tribunal with those that incur them."
5. The Builder's quote from Fleet Repairs is selective and apt to mislead. The full sentence from [84] of Fleet Maintenance is: "Underlying section 60(1) is a view that the guiding principle is generally better served by leaving costs in proceedings before the Tribunal with those who incur them."
6. We have underlined the part of [84] not included in the quote contained in the Builder's submissions. The omitted part is significant because, in the present case, s 60 of the NCAT Act did not apply, it having been displaced by the operation of r 38(2)(b) of the NCAT Rules (see our reasons in relation to Ground 1 above).
7. That displacement having occurred, the law is that general law principles apply to the question of costs, including the general proposition that ordinarily costs follow the event.
8. The Builder further submitted that the Tribunal failed to adhere the guiding principle as its decision was inherently unjust because the Owner had obtained no success, because the amount in dispute was less than $30,0000, and that the Tribunal had failed to facilitate the cheap resolution of the proceedings by awarding costs in the circumstances of the dispute.
9. As we have earlier pointed out, the Owner was successful in both proceedings and the amounts claimed or in dispute in both proceedings was greater than $30,000.
10. As for the Builder's last point, the guiding principle is not simply "cheap" (for the Builder), but "just, quick and cheap". The concept of justness, where r 38(2)(b) applies, is that ordinarily costs follow the event except in certain limited circumstances, none of which apply in this case.

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

Amendments 30 April 2020 - File Number corrected. 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: 30 April 2020