The substantive appeal to which this application relates stems from proceedings between the appellant as builder and the respondent as homeowner in the Consumer and Commercial Division of the Tribunal, for remedies relating to works governed by the Home Building Act 1989 (NSW) Each party lodged applications. The builder sought recovery of an amount of approximately $471,000.00 as a debt. The homeowner cross-applied, seeking payment of an unspecified sum of money.
On 8 March 2021, the Tribunal made orders on the application of the homeowner, transferring both proceedings to the District Court, and noting that costs in those proceedings should be costs in the proceedings before the Court.
The basis for the transfer was that the homeowner satisfied the Tribunal that there were proceedings in the District Court brought by the homeowner's neighbour, relating to the effect of the building works, which the Tribunal was satisfied raised issues which were "inextricable linked", in a factual sense, to those agitated in the Tribunal.
The appellant subsequently lodged an internal appeal and an application to stay the order for transfer and the consequent order in respect of costs of the proceedings.
The appellant's Notice of Appeal was filed within 28 days of the appellant receiving the Tribunal's decision. The appellant alleged that the Tribunal applied the wrong legal principles to the transfer application and gave inadequate reasons for its decision.
The Application for Stay of Original Decision Pending Appeal ("the Stay Application") was not, however, filed until approximately two months after the decision was made. The appellant explains that delay by virtue of him having English as a second language and not being legally represented at the time the appeal was lodged.
The orders sought by the Stay Application, as set out in submissions by the appellant were, firstly, a stay of the decision. In the alternative, the appellant sought an order that "the parties consent to vacating the directions hearing in the District Court…"
I dealt with the Stay Application on 19 May 2021. By that time, of course, the order had been brought into effect and the proceedings in the District Court, including those transferred by the Tribunal's decision, were listed for directions before the Court. The appeal had already been listed for determination on 7 June 2021.
I dismissed the Stay Application and gave oral reasons. In short, whilst I was satisfied that the appeal was arguable, given the relatively terse reasons provided by the Tribunal, I was not satisfied that the order could be stayed, given that it had already been brought into effect and the District Court was seised of the proceedings: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; 78 NSWLR 302, per Basten JA at [16]. Clearly, I had no power to order that the parties take a certain course by consent in those proceedings.
Nor was I satisfied that it was in the interests of justice that I make some other order affecting the operation of the decision, as permitted by s 43(3) of the Civil and Administrative Tribunal Act 2013 (NSW)(NCAT Act). There was no suggestion that the matter could not be properly continued in the Court, or that the Court lacked jurisdiction to determine any aspect of the claims.
The homeowner sought her costs of the Stay Application. I made directions for submissions and, after hearing from the parties on the issue, ordered that a hearing of that application be dispensed with.
The parties have each lodged submissions on the costs application. They were only referred to me recently, after the decision in the substantive appeal had been made. The appeal has been dismissed after leave to appeal was refused, and the appellant ordered to pay the respondent's costs of the appeal, with the costs of the Stay Application remaining reserved. The Appeal Panel gave oral reasons.
This is my decision on the application that the appellant pay the respondent's costs of the Stay Application.
I have decided to order that the appellant pay the respondent's costs of the Stay Application on the ordinary basis.
[2]
Principles relating to costs
The primary provision governing costs in relation to proceedings in the Tribunal is s 60 of the NCAT Act. Pursuant to that section, each party to proceedings is generally to pay their own costs. However, pursuant to s 60(2) of the Act, the Tribunal may award costs if it is satisfied that there are special circumstances warranting it doing so.
The factors which may be considered by the Tribunal when determining whether special circumstances have been demonstrated are set out in ss 60(3)(a) to (f) of the Act and in subsection 60(3)(g) of the Act, which allows the Tribunal to take into account:
[A]ny other matter the Tribunal considers relevant.
In relation to proceedings in the Consumer and Commercial Division where the amount in dispute is over $30,000, that general rule is modified by r 38(2)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules) and the Tribunal in those proceedings may award costs even in the absence of special circumstances.
In an appeal from a decision where r 38 applies, r 38A of the Rules requires the Appeal Panel to apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal.
In respect of this application, the respondent submits that the proper application of r 38A means that the costs provisions in r 38(2)(b) apply to the Stay Application. The respondent submits that the Appeal Panel that determined the substantive appeal decided that r 38A applied in making its decision in respect of costs of the balance of the appeal proceedings, and that it referred with approval to a determination of a differently constituted Appeal Panel in Dyldam Developments Pty Ltd v Mewing [2017] NSWCATAP 170.
The builder disputes that r 38A of the Rules is engaged (albeit in submissions made before the determination of the substantive appeal), and says that the amount claimed or in dispute in the appeal was not referable to an amount of over $30,000.00 but, rather, the proper application of the Tribunal's discretion to transfer the proceedings to the District Court. The builder submits that there are no special circumstances warranting an award of costs.
I am not satisfied that I need to determine whether r 38A of the Rules applies in this matter, because in my view special circumstances warranting an award of costs has been demonstrated in any event. I have not been provided with the reasons of the Appeal Panel that determined the substantive appeal.
It is well-settled that special circumstances do not require circumstances which are exceptional or extraordinary: CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21. Rather, the question is whether the circumstances are out of the ordinary.
[3]
Determination
My satisfaction that there are special circumstances in respect of this application is based on:
1. my satisfaction that the Stay Application was prosecuted by a party who was, by that time, legally represented without appropriate regard for the fact that the orders sought could not properly be granted;
2. my view that the appellant's significant delay in bringing the Stay Application should have made it apparent that there was little prospect of success in another form of order affecting the operation of the decision, not argued for, being made;
3. the fact that the decision which is the subject of the appeal was an interlocutory decision on an issue of procedure, which the appellant required leave to prosecute, and where that leave would be subject to well reported restraints on appellate intervention in those circumstances: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 175; [1981] HCA 39; Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54; and
4. the situation that, having regard to the costs order made in the substantive appeal, if the respondents had not separately made an application for costs of the Stay Application, they would likely have been entitled to their costs of the Stay Application by virtue of the decision in the appeal in any event.
On being satisfied that special circumstances exist, I need to consider whether they warrant an order as to costs and exercise my discretion in relation to what order should be made.
I am satisfied that a costs order is warranted, given the combined effect of my considerations in [23] above.
The respondent has been successful in the substantive appeal, including in relation to costs. She was also successful in resisting the Stay Application.
The usual order for costs is that they follow the event, to compensate a successful party for the cost of the litigation: Thompson v Chapman [2016] NSWCATAP 6 at [69]; Oshlack v Richmond River Council (1998) 193 CLR 72 at [97]. I see nothing to warrant the exercise of my discretion differently here.
I order that:
1. The appellant shall pay the respondent's costs of the application for a stay on the ordinary basis as agreed or, if not agreed, then assessed on the basis set out in the legal costs legislation as defined in Legal Profession Uniform Law Application Act 2014 (NSW) s 3A.
[4]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
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
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Decision last updated: 06 August 2021