Lawrence v Ciantar No 3

1 The Appeal Panel notes that both parties have made submissions on costs on the assumption that s 60 of the NCAT Act applies.

2 It is the Appeal Panel's preliminary view that the costs provision found in rule 38A of the NCAT rules apply in the circumstance of this appeal, given the amount claimed in the original home building application.

3 The Appeal Panel seeks submissions not exceeding 1200 words from the parties on whether rule 38A applies and, if so, how it affects their costs submissions. The respondent's submissions are to be filed and served by 18 August 2025 and the Appellant's by 25 August 2025.

4 The submissions are also to address whether the parties still consider that the costs issue can be determined without a hearing, which the Appeal Panel presently proposes to do.

1. Both parties have since filed submissions in response, which submissions I will refer to as their August submissions.

1. In addition to the material that was before the Appeal Panel when the earlier decision were made, I had:

(1) The respondents' submissions on costs dated 1 July 2025 seeking an order for costs in their favour.

(2) The appellant's submissions opposing such an order received on 7 July 2025.

(3) The respondent's August 2025 submissions.

(4) The appellant's August 2025 submissions.

Should the application be determined without a hearing?

(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 home building matters it is usual for costs to be determined on the papers without a hearing. Here, the respondents agreed to costs being determined without a hearing.
2. As I understood the appellant's submissions of 7 July 2025, he raised no objections to that course being adopted. He wrote:

"If needed, the Appellant welcomes a brief oral hearing to clarify matters."

1. In his August submission the appellant sought an oral hearing and to cross-examine the respondents' solicitor. His submission said:

20. The Respondents ask that costs be determined 'on the papers' under section 50(2). The Appellant strongly opposes this.

21. If the Respondents rely on the appeal as the foundation for their costs claim, then the Tribunal must also consider all grounds and conduct within the appeal.

22. This requires that the Respondents' solicitor be made available for cross-examination regarding:

(a) use of subpoenaed documents;

(b) reliance on the Appellant's builder's licence;

(c) GST non-compliance; and

(d) failure to provide tax invoices.

23. By advancing their claim to costs on the footing of the appeal, the Respondents treat the appeal as though it were determined on its merits. Yet the Tribunal has already ruled that it did not have jurisdiction to hear the substantive merits. The Respondents cannot simultaneously rely on the appeal to justify costs while denying scrutiny of their conduct.

24. Accordingly, the Respondents have opened the door to full consideration of their conduct within the appeal. Procedural fairness requires that the Appellant be permitted to raise these matters and to cross-examine the Respondents' solicitor

1. These submissions are not convincing. The costs under consideration are those of the appeal proceedings for which the appellant required, but did not obtain, an extension of time in order to proceed. Thus the appeal failed.
2. Earlier, in his August submissions, at pars 7 to 12, the appellant repeated a number of allegations with respect to the respondent's conduct that he had sought to raise in the substantive hearing. He cannot agitate them under the guise of contesting a costs application relating to the appeal. At pars 12 to 16 the appellant made a series of allegations against the respondents' solicitor, which he had sought to air in the initial proceedings and on appeal, without success. He also made allegations of misconduct by the solicitor in the circumstances giving rise to his claims. The proper forum in which to air them is not on the consideration of costs relating to his failed application for an extension of time in which to appeal.
3. If an order for costs is made, scrutiny of the respondent's necessary costs is available in the course of the costs assessment process. "Scrutiny of their conduct", meaning the conduct of the respondents as sought by the appellant, is neither appropriate nor necessary when determining who should pay the costs of an appeal that has already been determined.
4. I also reject the appellant's contention that "procedural fairness" requires that the appellant be permitted to raise these matters and to cross-examine the Respondents' solicitor on them. In my view, the appellant is impermissibly seeking to raise issues going, once again, to the substance of his claims against the respondents.
5. The arguments advance by the appellant for seeking an oral hearing in which to cross-examine the respondent's solicitor do not merit a hearing. An oral hearing will not assist in determination of the costs issue. The request for an oral hearing impresses me as yet another attempt to reagitate matters that the appellant has already argued and lost in the Tribunal, the Supreme Court (Lawrence v Ciantar; Ciantar v Lawrence [2019] NSWSC 46) and the Court of Appeal (Lawrence v Ciantar [2020] NSWCA 89).
6. Having reviewed all the materials I am satisfied that the partes have clearly articulated all of their submissions in relation to the issue of costs and that it is a matter that can be readily determined in the absence of the parties by considering the materials lodged by them. To conduct a further hearing in the circumstances would not be necessary, just, quick or cheap. I therefore dispense with a hearing.

1. The general rule in the Tribunal is that costs of an appeal are only allowed where special circumstances are found - see s 60 of the NCAT Act.
2. Section 60, however, is in Pt 4 of the NCAT Act. Section 35, which is also in Pt 4, provides:

Each of the provisions of this Part is subject to enabling legislation and the procedural rules.

1. Therefore, s 60 is subject to the procedural rules. Section 60 relevantly provides:

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

(2) 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.

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following -

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),

(g) any other matter that the Tribunal considers relevant.

(4) If costs are to be awarded by the Tribunal, the Tribunal may -

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.

1. Rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules) is a first instance cost provision which applies to claims in the Consumer and Commercial Division where, among other things, the amount in dispute exceeds $30,000. Rule 38 says -

(1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal.

(2) 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. Rule 38A of the NCAT Rules provides, with respect to internal appeals, that:

(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. In the present case the amount in dispute with respect to Mr Lawrence's initial claim was $484,347, well in excess of $30,000. Costs could therefore have been sought and awarded with respect to the initial proceedings, but no application was made.
2. Rule 38A requires that the same rule be applied with respect to costs of the appeal. It is important to note that the amount in issue for the purposes of the rule is the amount in issue in the appeal: see Allen v Tricare Hastings Ltd [2017] NSWCATAP 2 (Tricare) at [57] where the Appeal Panel said:

57... it appears to us that in applying r 38(2)(b):

(1) The determinative factor is the amount in dispute in each appeal, not the amount in dispute in the proceedings at first instance;

(2) The phrase "in dispute" is to be construed as meaning truly in dispute or at issue or, inversely, not unrealistically in dispute;

(3) Whether "the amount ... in dispute" in each appeal is more than $30,000 depends on whether there is a realistic prospect that in each appeal the wealth of the appealing party would be changed by more than $30,000 or, put another way, whether the right claimed by the appealing party, but denied by the decision at first instance, prejudices that party to an amount in excess of $30,000;

(4) The fact that the value of the property the subject of any appeal exceeds $30,000 does not, of itself, mean that "the amount ... in dispute" in that appeal is greater than $30,000.

1. Both parties have been given the opportunity to make submissions on costs. They both initially made submissions based on the misconception that s 60 of the NCAT Act applies and that special circumstances have to be demonstrated in order for the respondent to obtain an order for costs. That is not the case.
2. I advised them of my preliminary view that s 60 did not apply and that rule 38A of the NCAT Rules applied. They have each made submissions in response to that advice.
3. The appellant submits that rules 38 and 38A of the NCAT Rules do not apply because the initial proceedings before the Tribunal, and on appeal, concerned the issue of jurisdiction and not any monetary amount. This submission conveniently disregards the amount the appellant was seeking to claim in the proceedings which he maintained the Tribunal had jurisdiction to hear.
4. The appellant submitted that costs should be determined in accordance with s 60 of the NCAT Act and that there were no special circumstances justifying an order for costs in favour of the respondents. He went further, to claim his costs - despite the outcome of the appeal proceedings - because the respondents' conduct had had unnecessarily disadvantaged him.
5. The respondents' submission was that rule 38A of the NCAT Rules applies and that they were entitled to an order for costs. Alternately, they maintained their earlier position that if s 60 applied there were special circumstances meriting an order for costs in their favour.

1. In the present case, the appeal was against a decision made in the Consumer and Commercial Division that the Tribunal did not have jurisdiction to entertain the appellant's claim for $484,347 as it was made outside the time required by s 48K of the Home Building Act 1989 (NSW). That decision was an ancillary decision as defined in s 4 of the NCAT Act, not an interlocutory decision as was the case in Tricare. If the appellant were successful in his appeal the sum of $484,347 would again have been "in dispute" between the parties. The stakes were significant for all parties and well above $30,000.
2. Therefore the rule which applies is that provided for by rule 38A of the NCAT Rules, that costs follow the event, with the successfully party usually being entitled to an order for costs.
3. The nature of the general discretion to award cost under r. 38(2) (and therefore r. 38A) was considered by the Appeal Panel in Bonita v Shen [2016] NSWCATAP 159:

58. Rule 38 (2)(b) of the NCAT Rules provides that the Tribunal "may" award costs. This provision confers upon the Tribunal a power which may be exercised at the discretion of the Tribunal: see s9 of the Interpretation Act.

59. In Thompson v Chapman [2016] NSCATAP 6, when dealing with r 38(2)(b), the Appeal Panel said at [69]:

The starting point in exercising such a discretion is that the "usual order for costs" is that a successful party should be entitled to an order for costs in their favour.

59. The Appeal Panel in Thompson referred to the decisions of the High Court in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 and Oshlack v Richmond River Council ([1998] HCA 11; 1998) 193 CLR 72.

60. In Latoudis McHugh J said at 567:

An order for costs indemnifies the successful party in litigious proceedings in respect of liability for professional fees and out-of-pocket expenses reasonably incurred in connection with the litigation: Kelly v. Noumenon Pty Ltd (1988) 47 SASR 182, at p 184. The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory. Thus, in civil proceedings an order may, and usually will, be made even though the unsuccessful party has nearly succeeded or has acted reasonably in commencing the proceedings.

The expression the "usual order as to costs" embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party[96]. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.

62. While McHugh J was in the minority in Oshlack, (which related to an individual seeking to remedy or restrain a breach of the Environmental Planning and Assessment Act, 1979 (NSW), being proceedings authorised by s 123 (1) of that Act), the majority in that case did not disagree with the general principle but rather whether, in the particular circumstances of the case, an order for costs should be made against the unsuccessful plaintiff, Oshlack.

63. On the other hand, where there is a general discretion to award costs there is no absolute rule that the successful party must receive the costs. In Thompson the Appeal Panel said at [71]-[72]:

71 Where there is a general discretion for costs there is no absolute rule that, absent disentitling conduct, a successful party is to be compensated by the unsuccessful party nor is there any rule that a successful party might not be ordered to be of the costs of an unsuccessful party: see Oshlack ... per Gaudron and Gummow JJ at 88 and Kirby J at 121-123.

72 The factors to be considered in awarding costs in a particular case are not to be confined as to do so would constrain the general discretion. However it is clear from the authorities that factors that might influence whether the usual order for costs should apply and, if so, to what extent include:

(1) Whether, by reason of the relative success of the parties on different issues and the time taken to determine those that an order for costs based on issues should be made; see for example Bostick Australia Pty Ltd v Liddiard (N0 2) [2009] NSWCA 304; and

(2) Whether, by reason of the nature of the proceedings the usual rule should otherwise be displaced in whole or in part: see Oshlack ... per Gaudron and Gummow JJ at 41-44.

1. See also Islam v Metricon Homes Pty Ltd [2018] NSWCATAP 116 at [32-39].
2. In submissions the appellant relied on Reid & Robinson Builders Pty Ltd v Cleal [2022] NSWCATAP 137 ("Cleal") for the proposition that "costs under Rule 38 are not available where the dispute is jurisdictional rather than monetary." This is not correct. That case was concerned with the costs of an appeal against an interlocutory decision to transfer proceedings to the District Court. At issue was, at [13] -

... whether, as the Builder contends, for the purposes of Rule 38, the "proceedings" were the Homeowners' interlocutory application for the transfer of the proceedings to the District Court, or, as the Homeowners contend, the whole of the proceedings, of which their interlocutory application formed part; and

24. ... Rule 38 can be considered a remedial provision as it confers a benefit on a successful party to proceedings in the Consumer and Commercial Division of the Tribunal which is not enjoyed by successful parties to proceedings in other divisions of the Tribunal and "thereby remedies some injustice" (Re McComb [1999] VSC 311; [1999] 3 VR 485, at [490]). The "injustice" sought to be addressed by Rule 38 is tolerably clear: a successful party in consumer or commercial proceedings ought not be denied a costs order by the operation of the more onerous provisions of s 60 of the CAT Act.

25. To the extent that ambiguity exists with respect to the interpretation of Rule 38, we consider that it should be interpreted "beneficially", which means "not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow" (Bull v Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370). In IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, at [11], Brennan CJ and McHugh J cautioned that

"Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural".

26. To interpret "proceedings" in Rule 38 narrowly would almost certainly confine the operation of the rule to costs applications following the making of final orders, and to encourage interlocutory applications which, although unmeritorious, would not enliven s 60 of the CAT Act. It is difficult to accept that the legislature intended to constrain the operation of Rule 38 in the absence of words evidencing that intention, or that such an interpretation would promote the apparent purpose or object of Rule 38.

27. For the reasons recorded above, we are satisfied that the Homeowners' application arises in "proceedings" which are potentially governed by the provisions of Rule 38, and thereby, Rule 38A. In relying on s 33 of the Interpretation Act, we are conscious of the fact that the section "is not a warrant for redrafting legislation nearer to an assumed desire of the legislature" (R v L (1994) 49 FCR 534, at [538]). We are also satisfied that our interpretation of "proceedings" for the purposes of Rule 38 does not involve an impermissibly "strained construction" of the words of the Rule (Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292, at [302]). It is thus necessary to consider whether the amount claimed or in dispute in the proceedings was more than $30,000.

1. The decision of the Appeal Panel in Cleal did not find that rule 38 (or 38A) had no application where jurisdiction is being determined. It found that interlocutory proceedings were proceedings to which rule 38 applied, provided the amount claimed or in dispute in the proceedings was more than $30,000. I think that the Tribunal's reasoning in Cleal is persuasive.
2. Here the proceedings are not interlocutory but ancillary proceedings, going to the Tribunal's jurisdiction to hear the claim. The entire fate of the appellant's application to the Tribunal depended on their outcome.
3. In accordance with the interpretation of "proceedings" in r. 38 adopted by the Appeal Panel in Cleal, I am satisfied that ancillary proceedings in the Consumer and Commercial Division (and appeals from them) are also proceedings to which r. 38 applies (and rule 38A), provided the amount claimed or in dispute in the proceedings is more than $30,000. If the appeal had been allowed, the respondent's would have been exposed to litigation in which $484,347 was at stake. The amount in dispute in the appeal therefore exceed $30,000.
4. I am not aware of any circumstances which would persuade me not the follow the usual rule that the respondents are entitled to their costs of the appeal in which they were entirely successful. Certainly, there is nothing in the appellant's submissions that would justify a departure from the usual course.
5. I add that, if s 60 of the NCAT Act did apply, I would be satisfied that special circumstances exist that justify making an order that the appellant pay the respondents' costs of the appeal. My reasons for reaching that conclusion include that:

(1) The Tribunal at first instance dismissed the appellant's Home Building Claim because the claim was not within the jurisdiction. That decision was upheld on appeal. In my view the appeal was without merit, lacking in substance and had no reasonable prospects of success; see s 60(c) and (f).

(2) The appellant did not comply with the directions of the Appeal Panel with respect to the filing of submissions and material on a number of occasions and caused an adjournment of the appeal (part-heard) on 3 February 2025 by seeking to substantially amend his grounds of appeal; thereby disadvantaging the respondents - see s 60(a).

1. I do not accept the appellant's submission that the respondents' conduct disadvantaged him. Rather, as found above, the shoe is on the other foot: the appellant's conduct of the appeal disadvantaged the respondents.

(1) A hearing on the issues of the costs of the appeal is dispensed with.

(2) The appellant shall pay the respondents' costs of the appeal as agreed or assessed. This includes the costs of the adjourned hearing on 3 February 2025.

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.