Sader v Renbar Construction Pty Ltd (No 2)

File Number(s): 2025/00264921

Publication restriction: Nil

REASONS FOR DECISION

Introduction

1. Reasons for decision in this matter were published on 13 March 2026: Sader v Renbar Construction Pty Ltd [2026] NSWCATAP 77 (Appeal Decision).

2. This was an appeal from a decision of the Consumer and Commercial Division of the Tribunal published 12 June 2025, Sader v Renbar Constructions PL [2025] NSWCATCD 47 (Primary Decision).

3. For the reasons given in the Appeal Decision, we refused leave to appeal and the appeal was otherwise dismissed.

4. Our orders included a timetable for submissions as to costs.

5. Both parties filed submissions pursuant to our directions.

6. For the following reasons, we order the appellant to pay the respondent’s costs as agreed or as assessed.

7. These reasons assume a knowledge of the Appeal Decision.

Preliminary issue

8. Neither party opposed us determining costs on the papers. As we are satisfied that the issue of costs can be adequately determined in the absence of the parties by considering their written submissions, we dispense with a hearing: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 50(2).

Respondent’s submissions, 9 April 2026

9. In summary, the respondent submits:

10. the proceedings to which the appeal relates involved claims under the Home Building Act 1989 (NSW) with an amount in dispute over $30,000;

11. the relevant costs rule is that found in r 38 of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules). It provides a general discretion to award costs;

12. in accordance with the principles set out in Thompson v Chapman [2016] NSWCATAP 6 at [67]-[72]:

(a) 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; (b) an award of costs is by way of an indemnity to the successful party and not as punishment of the unsuccessful party; (c) where there is a general discretion for costs there is no absolute rule that, absent disentitling conduct, a successful party is to be compensated by the unsuccessful party nor is there any rule that a successful party might not be ordered to bear the costs of an unsuccessful party; (d) the proper exercise of the discretion requires the Tribunal to do justice between the parties and to exercise the discretion having regard to relevant considerations and in a manner which is not arbitrary or capricious.

4. the respondent was entirely successful in the appeal, the appellants seeming to simply agitate the factual findings of the Tribunal at first instance;
5. there is no reason why the general rule that costs follow the event should be displaced;
6. the respondent did not participate in any disentitling conduct so as to prevent the Appeal Panel from making any costs order in the respondent’s favour and there are no factors in the appeal proceedings which would warrant a departure from the usual principle that costs follow the event.

Appellants’ submissions, 17 February 2026

10. The appellants’ submissions are in an unusual form, with the respondent “admitting” or “not admitting” submissions made by the respondent.

11. In summary, the appellants submit that each party should bear their own costs of the appeal.

12. The submissions commence by stating that the respondent’s costs submissions were “made out of time”, and that the respondent requires leave, or amended orders, to have those submissions considered now.

13. The appellants then submit:

14. the subject matter of the appeal was for the matter to be referred back to the Tribunal, “not a monetary claim”;

15. any monetary claim also included a claim for less than $30,000, for the appellant’s costs of mitigating the damage caused to their home;

16. no special circumstances exist;

17. the costs of the Tribunal proceedings have not been finalised;[End]

18. a costs order would amount to punishment;

19. the Appeal Panel has a discretion and:

8.3.1 There is no absolute rule, absent disentitling conduct, which did not occur;

8.3.2 There is no absolute rule that a successful party, is to be compensated by the unsuccessful party, and;

8.3.3 There is any rule [sic] that a successful party might not be ordered to bear the costs of an unsuccessful party.

14. In conclusion, the appellants submit that “to do justice” each party should bear their own costs.

Respondent’s submissions in reply

15. The respondent did not file any submissions in reply.

Issues to be determined

16. The following issues fall to be determined. We state a summary of our conclusion in italics.

17. What is the relevant costs rule? Rules 38 and 38A of the NCAT Rules*.*

18. Is the respondent entitled to costs? Yes.

19. Should costs be awarded? Yes.

What is the relevant costs rule?

17. The starting point is s 60 of the NCAT Act which relevantly 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.

…

18. However, r 38 of the NCAT Rules provides:

38 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.

19. That means that the relevant costs rule in the proceedings at first instance was that found in r 38.

20. Rule 38A then provides:

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.

21. As the Appeal Panel stated in Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 (Allen) at [57], in applying r 38(2)(b) in relation to an 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.

22. Further, in The Owners - Strata Plan No 2341 v P& M Sachs Pty Ltd (No 2) [2023] NSWATAP 23, the Appeal Panel stated:

19 It is necessary to recognise that rule 38 is applicable directly to first instance proceedings and rendered applicable to appeal proceedings by the operation of rule 38A. It is not necessary, or appropriate, to approach the construction of rule 38 in its application to appeal proceedings on the basis that all parts of the rule are intended to have some operation in that context.

20 As the Appeal Panel noted in Hanave Pty Ltd v Wine Nomad Pty Ltd; Wine Nomad Pty Ltd v Hanave Pty Ltd (No 2) [2022] NSWCATAP 361 (Hanave (No 2)), at [63], rule 38 “says it applies if ‘the amount claimed or in dispute in the proceedings’ is more than $30,000”.

21 As the Appeal Panel decisions in Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 and Hanave (No 2) make clear, in applying rule 38 to an appeal, “the proceedings” are the appeal proceedings, not the proceedings determined by the decision from which the appeal is brought.

22 It may not be meaningful to speak of a claim by an appellant in appeal proceedings, but that is not a reason to construe rule 38 in the manner suggested by the respondent.

23. The appellants filed their proceedings in the Tribunal on 18 January 2024. They sought a money order in the sum of $222,315.46 for alleged breaches of s 18B of the Home Building Act 1989 (NSW), and alleged breaches of the respondent’s duty of care under s 37 of the Design and Building Practitioners Act 2020 (NSW).

24. Thus, the relevant costs rule for the Tribunal proceedings was that found in r 38 of the NCAT Rules, and the Tribunal found this to be the case in its costs decision of 21 November 2025, Sader v Renbar Constructions Pty Ltd [No 2] [2025] NSWCATCD 197.

25. In that decision, the Tribunal ordered the appellants to pay the respondent’s costs of the proceedings on the indemnity basis as agreed or assessed.

26. The Tribunal found that:

27. the cost or value of the works the subject of the owners’ claims clearly exceeded $30,000: Kaye v Owners SP 4350 [2022] NSWSC 1386 at [79]; Redmyre Group PL v Stockman [No 2] [2023] NSWCATAP 342 at [25]; and

28. by reason of the unreasonable rejection by the appellants of a Calderbank offer made by the respondent, the respondent was entitled to its costs on the indemnity basis.

29. That said, what is the “amount claimed or in dispute” in dispute in this appeal? The order appealed against was, relevantly, the Tribunal’s decision to dismiss the proceedings.

30. As was noted in Sydney Roof Construction Pty Ltd v Varga (No 2) [2026] NSWCATAP 102 at [23], in Allen*,* the Appeal Panel considered the meaning of ‘the amount claimed’ and “the amount … in dispute” in rule 38(2)(b) in appeal proceedings. The Appeal Panel said, at [57]:

Adapting these principles to the circumstances of the present appeals and having regard to the specific wording of r 38, it appears to us that in applying r 38(2)(b):

(1) The determinative factor is the amount in dispute in each appeal, not the amount in dispute in the proceedings at first instance;

(2) The phrase “in dispute” is to be construed as meaning truly in dispute or at issue or, inversely, not unrealistically in dispute;

(3) Whether “the amount ... in dispute” in each appeal is more than $30,000 depends on whether there is a realistic prospect that in each appeal the wealth of the appealing party would be changed by more than $30,000 or, put another way, whether the right claimed by the appealing party, but denied by the decision at first instance, prejudices that party to an amount in excess of $30,000;

(4) The fact that the value of the property the subject of any appeal exceeds $30,000 does not, of itself, mean that “the amount ... in dispute” in that appeal is greater than $30,000.

(emphasis added)

29. Applying the principle in Allen which we have highlighted above, we consider that the amount in dispute on appeal is more than $30,000, and thus the relevant costs rules are those found in rr 38 and 38A of the NCAT Rules.

Is the respondent entitled to costs?

30. Therefore, prima facie “costs follow the event”, and special circumstances do not need to be established.

31. As the Appeal Panel recently stated in Lirantzis v Calligas [2026] NSWCATAP 52:

17 The principles regarding costs were set out in the Appeal Panel decision in 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.

32. It follows that the respondent has established the basis for an award of costs.

Should costs be awarded?

33. The Tribunal stated in Beecraft Pty Ltd v Tudor; Tudor v Beecraft Pty Ltd [2021] NSWCATCD 119, in words we adopt, that:

127 When rule 38 applies there is a general discretion to award costs and it is well established, by decisions such as News v Cotes [2019] NSWCATAP 186, Bonita v Shen [2016] NSWCATAP 159 and Thompson v Chapman [2016] NSWCATAP 6, that: (1) the starting point is that the usual order for costs should be in favour of the successful party, (2) the award is not to punish the unsuccessful party but to compensate the successful party for the costs incurred in the proceedings, and (3) departure from the usual order is permissible if the circumstances favour that course of action.

128 Simply stated, when rule 38 applies it is not necessary to establish special circumstances and the usual order is that costs follow the event (ie follow the outcome of the case) unless there is disentitling behaviour by the successful party: Latoudis v Casey [1990] HCA 59, Oshlak v Richmond River Council[1998] HCA 11. When rule 38 applies, as was observed in Tom v Jenkins [2018] NSWCATCD 24 at [12], the successful party can be said to have a reasonable expectation of being awarded costs.

(emphasis added)

34. It follows that costs should be awarded.

35. Given the authorities referred to above, we reject the appellants’ submission that the making of a costs order is a form of punishment.

Orders

36. The Appeal Panel orders:

37. The appellant is to pay the respondent’s costs of the appeal as agreed or as assessed.

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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