Promina Design & Construction Pty Ltd v The Owners - Strata Plan No. 97449 - [2023] NSWCATAP 164 - NSWCATAP 2023 case summary

Summary

On 4 May 2023, I dismissed an application for a stay of an order made in the proceedings at first instance by the Consumer and Commercial Division to transfer proceedings before it under the Home Building Act 1989 (NSW) to the District Court: Promina Design & Construction Pty Ltd v The Owners - Strata Plan No. 97449 [2023] NSWCATAP 122. In sum, I was not satisfied that order had any future effect such that it was capable of being stayed. I did, however, indicate that if I was wrong in that I would have exercised my discretion to grant a stay.
The respondent sought its costs of that application. I made directions with a timetable for the filing of submissions in respect of costs, noting that the Appeal Panel may dispense with a hearing and deal with the issue on the papers. The parties were directed to address that issue in their other submissions, should they wish to. Neither party opposed the application being dealt with on the papers. As I am satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions and other material lodged with the Tribunal, I will make an order dispensing with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act).
For the reasons set out below, I have decided that the respondent's application for costs should be dismissed, with the effect that each party is to pay its own costs of the application.

Consideration

The respondent's submissions were primarily directed to the application of the usual costs considerations where s 60 of the Act is inapplicable, as it took the view that r 38A is engaged. It is not. There was no amount claimed or in dispute in the appeal, which relates solely to the order transferring the first instance proceedings to the District Court. As a fallback, though, the respondent did submit that an order for its costs was warranted under s 60 of the Act because: 1. The merits of the application for a stay were weak; 2. The appeal faces serious obstacles, as set out by me in the decision dismissing the application for a stay, at [28]; and 3. The stay had limited prospects of success, for the reason ultimately determinative, i.e., that there was no prospective effect of the order which could be "stayed".
I should record that the appellant made submissions that rr 38 & 38A are ultra vires, which were contrary to and did not engage with the decision of another Appeal Panel in Bonita v Shen [2016] NSWCATAP 159. However, I do not need to deal with those submissions as I am satisfied those rules have no relevant application here. The appellant also sought to characterise the result of the application for a stay as each party having had relative success, because I would have stayed the order if satisfied I had power to. I do not think that characterisation is apt where the appellant failed entirely for a reason brought to its attention prior to the hearing.
However, I do accept that the application was in respect of an apparently novel issue in the Tribunal and that the stay would have been granted, had I resolved the question of power in favour of the appellant. I do not think the application can be described as having been unreasonably lodged or maintained. In respect of the apparent merit of the appeal, the appellant only needed to satisfy me it was reasonably arguable, which it did. Self-evidently, there is nothing otherwise unusual in a party failing in an application for a stay.
On that basis, I am not satisfied there are special circumstances warranting an award of costs.

Promina Design & Construction Pty Ltd v The Owners - Strata Plan No. 97449

At a glance

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Judgment (5 paragraphs)

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Legislation Cited (3)

Cases Cited (9)

Cited By (4)