Miles v Buildfix Group Pty Ltd (No 2)

1. In the Homeowner's proceedings the Homeowner sought:

(1) a declaration that she was not liable to pay the Builder the outstanding invoiced sum of $4,785.00;

(2) an order that the Builder pay her compensation in the amount of $88,000.00.

1. The whole of the Homeowner's application was dismissed.
2. In the Builder's proceedings, the Builder sought an order for $4785.00 as unpaid monies owing by the Homeowner (being a dispute over the same amount the subject of the Homeowner's proceedings). The Builder's application was upheld and the Homeowner was ordered to pay the Builder $4785.00.
3. The Homeowner filed an appeal in relation to orders made in both the Homeowner's proceedings and the Builder's proceedings.
4. The appeal was heard on 30 June 2025 and we published our decision on 17 October 2025: Miles v Buildfix Group Pty Ltd [2025] NSWCATAP 260.
5. We made orders as follows:

(1) To the extent that the appeal raises questions of law, the appeal was dismissed.

(2) The respondent was to file and serve any application for costs and submissions (and if necessary evidence) on or before 14 days from the date of the orders.

(3) The appellant was to file and serve any submissions in reply (and if necessary evidence) on or before 28 days from the date of the orders.

(4) The respondent could file and serve any reply on or before 35 days from the date of the orders.

1. By way of a submission lodged on 31 October 2025 the Builder (as respondent to the appeal) has sought an order for costs of the appeal pursuant to r 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules).
2. The respondent's solicitor has confirmed with the Appeals Registry (email dated 22 January 2026) that a copy of the costs submission was provided to the appellant on 31 October 2025.
3. The Homeowner has not lodged any submission on the question of costs.
4. The Builder has not provided any submission regarding dispensing a hearing under s 50(2) of the NCAT Act on the question of costs, as we sought in the decision dated 17 October 2025. We are satisfied that it is appropriate to dispense with a hearing and to determine the application for costs on the papers.
5. The Builder submitted:

(1) The respondent was completely successful on appeal and should be awarded costs;

(2) Although in terms of the first instance proceedings, s 60 of the NCAT Act may be the applicable costs regime for the Builder's proceedings and r 38 of the NCAT Rules applicable to the Homeowner's proceedings, it would be artificial and inutile to make a costs order in the appeal under s 60 of the NCAT Act for that part of the appeal which concerned the Builder's proceedings and that part of the appeal which concerned the Homeowner's proceedings;

(3) All of the issues in dispute in both the Tribunal's decision and on appeal were raised in relation to the Homeowner's proceedings;

(4) A simple costs order that the appellant pay the respondent's costs of the appeal would be consistent with the guiding principle set out in s 36 of the NCAT Act.

1. Sections 60(1) and (2) of the NCAT Act provide that each party to proceedings in the Tribunal is to pay its own costs unless there are "special circumstances" warranting an award of costs. However, in proceedings in the Consumer and Commercial Division of the Tribunal, s 60 of the NCAT Act is subject to r 38 of the NCAT Rules which provides:

Costs in Consumer and Commercial Division of the Tribunal

(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.

38A Costs in internal appeals

(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. The amount claimed or in dispute in the Homeowner's proceedings was clearly in excess of $30,000 (the claim for compensation of $88,000 and the claim for a declaration not to be liable to pay the Builder $4,785.00) and as such r 38 was the applicable costs rule, not s 60 of the NCAT Act.
2. The amount in dispute in the Builder's proceedings was $4,785.00 and, being less than $30,000, the applicable costs rule was s 60 of the NCAT Act.
3. In applying r 38(2)(b) in relation to the appeal, as required by r 38A, the "amount claimed or in dispute" is the amount in dispute on appeal, not the amount in dispute in the proceedings at first instance: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [57].
4. The amount in dispute in the appeal is in excess of $30,000.00 (as it involves an appeal from the dismissal of the Homeowner's claim for $88,000.00 and a dismissal of the Homeowner's claim that she was not liable to the Builder for $4,78.005) and therefore, we are satisfied that the "first instance costs provisions" in respect of the appeal are those set out in r 38.
5. We agree with the respondent's submission that there was no distinct question raised in the appeal which related to the Builder's proceedings and not the Homeowner's proceedings.
6. Accordingly, by virtue of r 38A(2), we apply r 38 in deciding whether to award costs of the appeal and special circumstances are not necessary before we may make an order in relation to the costs of the appeal.
7. The principles regarding costs were set out in the Appeal Panel decision of Thompson v Chapman [2016] NSWCATAP 6 to the following effect:

(1) Rule 38 provides a general discretion to award costs;

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

(3) The reason for an order for costs being made is that it is considered to be appropriate for the party who incurred costs caused by the other party in litigation to be reimbursed. An award of costs is by way of indemnity to the successful party and not as a punishment to the unsuccessful party;

(4) The factors to be considered in awarding costs in a particular case are not confined as to do so would constrain the general discretion. However, factors that might influence whether the usual order for costs should apply include 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. Another factor might be whether by reason of the nature of the proceedings, the usual rule should otherwise be displaced in whole or in part.

1. McHugh J in Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [66] found:

By far the most important factor which courts have viewed as guiding the exercise of the costs discretion is the result of the litigation. A successful litigant is generally entitled to an award of costs.

1. The Builder has been entirely successful in the appeal, and we are satisfied that a costs order should be made in its favour in accordance with r 38 of the NCAT Rules.
2. We make the following orders:

(1) A hearing on costs is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

(2) The appellant is to pay the respondent's costs of, or incidental to, the appeal with such costs, if not agreed, to be assessed in accordance with the Legal Profession Uniform Law Application Act 2014 (NSW).

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.