Maygood Australia Pty Ltd v The Owners - Strata Plan No 85338

REASONS FOR DECISION

1. The appellant appealed against orders of the Consumer and Commercial Division of the Tribunal requiring it to pay the respondent Owners Corporation the sum of $71,742.71 in respect of defective building work. By our decision published on 16 November 2020, we allowed the appeal to the extent of reducing the amount the appellant was required to pay to $66,581.51, but otherwise refused leave to appeal and dismissed the appeal: Maygood Australia Pty Ltd v The Owners - Strata Plan No 85338 [2020] NSWCATAP 237.
2. In that decision orders were made permitting either party to file written submissions in respect of the costs of the appeal within 21 days of the publication of the decision and the other party to respond within 14 days thereafter. The orders required any submissions filed to include submissions as to whether a hearing about costs could be dispensed with and the costs issues determined on the papers.
3. The respondent filed submissions on 7 December 2020 seeking an order that the appellant pay its costs of and incidental to the appeal. The respondent did not seek that the costs be assessed on other than the ordinary basis. The respondent did not oppose the question of costs being determined on the papers.
4. The appellant has not filed submissions in response to the respondent's application.
5. We are satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions. Accordingly, we will make an order pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) dispensing with a hearing.
6. Section 60 of the NCAT Act provides: 60 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.