Solicitors:
L.C. Muriniti & Associates (Appellant)
G P Legal (Respondent)
File Number(s): AP 15/59495
Decision under appeal Court or tribunal: Civil and Administrative Tribunal
Jurisdiction: Appeal Panel
Citation: John Peter Maiolo v Frank Chiarelli and Anor [2016] NSWCATAP 81
Date of Decision: 11 April 2016
Before: J. Harris SC, Senior MemberD. Goldstein, Senior Member
File Number(s): AP 15/59495
[2]
Reasons for Decision
The principal decision in these proceedings was published on 22 January 2018 being proceedings remitted to the Appeal Panel by the decision of Davies J. in the Supreme Court of New South Wales in John Maiolo t/as M & N Peninsular Kitchens Joinery v Chiarelli [2017] NSWSC 982.
We made an order that:
'The decision of the Appeal Panel given on 11 April 2016 and amended on 19 April 2016 is varied to include the following order:
'Frank Chiarelli and Vicki Woodward must pay John Peter Maiolo the sum of $20,900.66 immediately'
We also made an order for costs in the appellant's favour, but stated that any application for a reconsideration of that order had to be lodged in the Tribunal and served on the other party within 21 days of the date of our orders either attaching or referring to any documents relied upon in support of the application.
The respondents applied for a reconsideration of our costs order serving submissions on 14 February 2018 in support of an order that each party pay its own costs. They also sought to serve a further set of submissions drafted by their solicitor. We refused leave for them to do that stating :
'The decision in these proceedings was published on 22 January 2018. Orders 2 and 3 stated that the respondents were to pay the appellant's costs but an application for a reconsideration of the costs order could be made by filing such an application within 21 days of 22 January 2018, 12 February 2018.
On 12 February 2018 the respondent's solicitor wrote to the Tribunal seeking a further 28 days to make such an application in relation to costs as the respondents required additional time to receive advice from counsel.
The appellant's solicitors responded on 22 February 2019 objecting to an extension of time for a number of reasons which were set out. They state, among other things, that on 13 February 2018 the respondents served them with submissions regarding costs and that they have drafted submissions in reply. They also point out that the proceedings have been on foot for a very long time and they should be no further delay in finalising them.
We have reached the conclusion that because the respondents have filed and served submissions in accordance with order 3 of the 22 January 2018 orders, and the appellant has drafted submissions in reply, the respondents should not be granted the extension of time they seek. To grant an extension of time in those circumstances would in our view unnecessarily increase the costs associated with the costs application by reason of the duplication of submissions.
We would also point out that the respondents have had ample time after 22 January 2018 to confer with counsel on the question of costs, but apparently only sought to do so on or about 12 February 2018. In addition, the question of costs is restricted to section 60 of the Civil and Administrative Tribunal Act 2013 and in our view no complex issues are involved such that the additional time sought to confer with counsel should be granted, in circumstances where the respondents have filed and served their costs submissions.
Once we have received the appellant's submissions we will determine the outstanding costs issue in accordance with order 5 of the 22 January 2018 orders.'
The appellant served his submission in response to the respondents' application on 5 March 2018.
Our 22 January 2018 costs order was based on section 60 of the Civil and Administrative Tribunal Act 2013 which states that each party is to pay their own costs unless there are special circumstances warranting an award of costs. In considering whether special circumstances exist, section 60(3) sets out a range of matters which the Tribunal may have regard to.
We stated that we were of the view that the respondents should pay the appellant's costs of the appeal. The special circumstances that we found to justify a cost order were stated to be as follows.
First, order 4 made by Davies J was clear that the proceedings were remitted to us for the purposes of varying our judgement to provide for payment by the respondents to the appellant for carrying out our order to install the kitchen.
Secondly, the judgement of Davies J. made it clear that evidence would be permitted in relation to the payment.
Thirdly, the orders and judgement of Davies J. did not permit the respondents to raise issues that, if accepted, would result in an order that no payment be made by the respondents to the appellant for the supply and installation of the kitchen. Despite the fact that the orders and judgement of Davies J. did not permit the respondents to raise issues going to whether they should pay for the downstairs kitchen, the respondents' main purpose at the hearing was to ventilate that issues.
Fourthly, the respondents did not produce evidence that went to the issue of the payment to be made by the respondents to the appellant for the supply and installation of the kitchen. To the extent that the respondents sought to do that by evidence of defective work, such evidence was ineffective and ultimately not pressed by the respondents. In the absence of any evidence relating to the payment issue, it was almost inevitable that the appellant would be successful in obtaining an order in his favour for the sum of $15,950.00.
Fifthly, so far as the respondents relied on section 10 of the Home Building Act 1989 to submit that the appellant was not entitled to damages or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, that submission failed because it was plain that the contract for the downstairs kitchen was in writing and did contain a sufficient description of the work to which it related.
The respondents' submissions seeking a reconsideration of the costs order in favour of the appellant, deal with a diverse range of matters including their disappointment with their solicitor, the payment history of the transactions between the parties, the history of the carrying out of work by the appellant, complaints about the appellant's workmanship and the fact that he is allegedly unlicensed to do certain work under the Home Building Act. Additional claims that the respondents now wish to make against the appellant are also identified.
The respondents submit that they should not have to pay costs because of the fact, asserted by them, that the appellant had led them to believe that he was licensed to install a corian benchtop and a glass splashback when he was not, and that they were provided with items that they did not order, namely splashbacks of the wrong colour. The respondents also state that it would be unjust for them to have to pay costs, presumably because of the long and troubled history of their transactions with the appellant. They seek an order that each party pay their own costs.
The appellant's submissions were filed on 5 March 2018. Without setting them out in full, they conclude by describing the respondents' submissions as 'confused, muddled, misconceived and utterly fanciful.' The appellant supports the Appeal Panel's costs order made on 22 January 2018 and submits that nothing in the respondent's costs submissions call for a reconsideration of that order.
The submissions also seek an extension of the costs order made on 22 January 2018 to extend to the appellant's costs of preparing submissions in reply to those filed and served by the respondents. In our view the costs order as presently drafted would include costs of the type referred to. On that basis an extension of the costs order is not warranted.
The respondent's costs submission do not engage with any of the matters identified by us as special circumstances which were the basis of the costs order made in the appellant's favour. None of the matters raised by them, which we have identified, address the special circumstances which we have identified. Having regard to the respondents' submission and their generalised nature, we are not minded to change or vary order 2 of our orders made on 22 January 2018.
We are aware that the parties have not strictly complied with our directions contained in order 3 and 4 of our orders made on 22 January 2018. The failures are minimal. Accordingly we will grant extensions of time pursuant to section 41 of the Civil and Administrative Tribunal Act for the respondents to file their costs application and for the appellant to file his response.
[3]
Orders
1. The respondents are granted an extension of time to 14 February 2018 to file and serve their costs application.
2. The appellant is granted an extension of time to 5 March 2018 to file and serve his response to the costs application.
3. Order 2 of the orders made on 22 January 2018 is confirmed.
[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.
Principal Registrar
[5]
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
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: 11 April 2018