Schach v Dowdy Constructions Pty Ltd (No 2) [2026] NSWCATAP 24 | Case summary

NCAT Appeal Panel|2026-01-30|Before: S Westgarth, Deputy PresidentD Goldstein, Senior Member

On 11th December 2025 we published our substantive decision with respect to this appeal. The appeal was dismissed and directions were made for the Respondent to file and serve submissions if the Respondent sought an order in its favour in respect of costs of the appeal. The Respondent has done so. The directions also provided for the Appellant to file and serve submissions concerning costs of the appeal in opposition to the Respondent's submissions.
The Appellant has not filed any submissions. In the paragraphs below we summarise the Respondent's submissions in support of an order for costs of the appeal to be made in its favour.

(1) The Respondent seeks an order that the Appellant pay its costs on the ordinary basis as it was wholly successful in the appeal.

(2) The Appeal Panel has jurisdiction to make the order requested by operation of r 38 and r 38 A(2) of the (NSW) (the Rules).

The decision at first instance found that the amount claimed or in dispute in the proceedings exceeded $30,000 and that r 38 of the Rules applied. Accordingly, costs may be awarded even in the absence of special circumstances. Rule 38A(2) provides that despite s 60 of the NCAT Act, the Appeal Panel, to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal. This means that we have the discretion to award costs of the appeal even in the absence of special circumstances.
The appeal was dismissed and the Respondent was wholly successful in opposing the appeal. Both parties had engaged lawyers to represent them and on its face had thereby incurred legal costs.
There does not appear to be any basis, and no basis has been put by the Appellant, to refuse to make an order for costs of the appeal in the Respondent's favour.
Accordingly, it is appropriate to exercise the discretion the award costs as sought by the Respondent.
We make the following orders:

(1) The Appellant is to pay the Respondent's costs of the appeal on the ordinary basis in an amount agreed between the parties or, in the absence of an agreement, as assessed.

(2) A hearing on the question of costs on the appeal is dispensed with.

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.

Administrative Tribunal Act 2013

Administrative Tribunal Rules 2014

Schach v Dowdy Constructions Pty Ltd (No 2)

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