Qui v Balmoral Street Developments Pty. Ltd.

NCAT Appeal Panel|2023-04-05

Summary

This decision relates to the costs of an appeal I dismissed after determining it on the papers. In short, I found that the appellant's long delay and the lack of any apparent merit in the appeal, due to the appellant's inability to demonstrate he had a right to claim the relief he sought under the Home Building Act 1989 (NSW), meant that an extension of time was not warranted. These reasons assume familiarity with that decision: Qui v Balmoral Street Developments Pty Ltd [2023] NSWCATAP 60 ("Appeal Decision").
The respondent seeks its costs of the appeal, primarily on the basis of a prima facie intent such costs follow the event where the amount in dispute exceeded $30,000 in the proceedings at first instance and the appeal, but also on the secondary basis that there are special circumstances warranting such an award.
I have decided the issue can be determined on the material lodged by the parties without an oral hearing and will order the appellant to pay the respondent's costs on the ordinary basis.

The relevant provisions governing costs

Section 60 of the Civil and Administrative Tribunal Act 2013 (NSW) ("Act") deals with the usual position as to costs: 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.

Is r 38A of Rules engaged?

The respondent says r 38A is engaged and costs should follow the event. It refers to my findings that the appellant initially sought an amount of $37,613 in his application at first instance and failed to make good his assertion that he had sought to amend his claim to an amount less than $30,000: Appeal Reasons at [37].
It says that, since the appellant challenged the decision to dismiss his claim at first instance and sought redress as set out in that application in the appeal, the appeal likewise relates to an amount claimed or in dispute exceeding $30,000.

Special circumstances warranting an award of costs?

If rr 38 and 38A had not been engaged and s 60 of Act applied, the respondent says that costs should be awarded, nonetheless. It says the appellant failed to engage with the Tribunal's finding that he had no standing to claim against it under the Home Building Act, meaning the appeal was misconceived or lacking in substance. It also says the extensive delay in lodging the appeal and the fact that the appellant's claim was, even on his own version, over $29,000 contributes to there being special circumstances warranting an award of costs.

The appellant's submissions

The appellant sets out the hardship he has experienced as a result of his recent poor health. He maintains that he sought to reduce his claim to an amount less than $30,000 at first instance, but has lodged no further evidence to support that claim.
Otherwise, he says that the respondent was tardy in complying with directions in both the proceedings at first instance and in the appeal.

Determination

I am satisfied that r 38A of the Rules is engaged, and that costs should follow the event.
The Tribunal's finding that the appellant sought more than $30,000 in the proceedings at first instance remains undisturbed. In respect of the appeal, even if it could be argued that the appellant's claim had been reduced to just under $30,000, he also challenged the Tribunal's order that the respondent have its costs. Despite the respondent lodging no evidence in that regard, I can safely infer the respondent's costs would exceed $1,000 in the proceedings at first instance, meaning the amount claimed or in dispute in the appeal was also in excess of $30,000.
Whilst I have sympathy for the appellant's health conditions, and their impact on him, he lodged no evidence of his financial circumstances being affected by those conditions other than an assertion, which I accept, that he was unable to work for an extended period. It was evidence of his financial circumstances and how an order may impact on him which may have been relevant to the exercise of my discretion in his favour. Nor did the respondent's delay in lodging material in the appeal, which was remedied by orders for extensions of time, rise to conduct which should disentitle it to an award to partially compensate it for its costs incurred.

Orders

My orders will be: 1. A hearing of the application for costs is dispensed with. 2. The appellant is to pay the respondent's costs of the appeal on the ordinary basis as agreed, or failing agreement as assessed. 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: 05 April 2023

At a glance

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Decision date

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Judgment (7 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (8)