LMA Contractors Limited v Changizi

Reasons For Decision

1. On 31 March 2017 the Appeal Panel published its decision in this appeal. The decision varied the decision of the Tribunal Member at first instance by reducing the amount that the appellant was required to pay to the respondent. Otherwise the appellant's application for Leave to Appeal was refused and its Appeal was dismissed.
2. The appeal Panel made orders for the filing of submissions in the event that either party wished to make a costs application.
3. The respondents have made an application for a costs order and filed and served submissions in support. No cost application or submissions in response have been received from the appellant.
4. The respondents have applied for an order that the appellant pay their costs of the Appeal and the proceedings at first instance in a fixed amount of $39,965.60 or in the alternative, an order that the appellant pay their costs as agreed or assessed.
5. In the proceedings appealed from the Tribunal Member was dealing with two applications commenced in the Consumer and Commercial Division of the Tribunal. As stated at [4] and [5] of our decision disposing of the Appeal: 'The owners claimed against the builder for a refund of unused provisional allowances, for overpayment of the contract price and for liquidated damages. The builder claimed against the owners for payment of what were described as informal variations. The order of the Tribunal required the builder to pay the owners $80,323.06.'
6. The Tribunal Member who heard the proceedings at first instance did not deal with the question of costs. Nor were any cost applications made.
7. Costs Jurisdiction
8. Section 60 of the Civil and Administrative Tribunal Act 2013 (the 'Act') provides that: 'Costs (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. (5) In this section: costs includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.'