Shaw v Rawson Homes Pty Ltd [2025] NSWCATCD 145 | Case summary

NCAT Consumer and Commercial|2025-09-25

These proceedings are materially different than those in Rutherford, where the Tribunal was asked to consider the issue of an order for costs as damages in circumstances where the Regulation 60 of the Strata Schemes Management Regulation 2016 (NSW) precludes recovery of certain costs relating to mediation.
In the current proceedings, I cannot identify any similar provision beyond the general principle in s 60 of the NCAT Act which would operate to preclude recovery of legal costs as damages. Because I have found that there is not sufficient evidence to establish that the legal costs claimed are costs in relation to the proceedings, they are accordingly recoverable as special damages.
However, I am not satisfied that the applicants have established which portion of those costs (if any) stem from the breaches of legal obligations that I have been able to make findings about on the available evidence. As set out above, a portion of the costs were likely associated with work on a variation agreement. Without being able to identify the portion which plainly relates to the that work (which I consider would not be recoverable) or pre-litigation advice (which I consider also would not be recoverable, in accordance with the principle set out in Anderson v Bowles), I am not persuaded that the applicants have provided adequate particulars to establish their entitlement to compensation. Accordingly, this part of the application is dismissed.

(1) I am not satisfied that there is evidence to establish the applicants' claim that either of the respondents gave a notice to Sydney Water that caused them to incur additional waste water usage charges.

(2) No evidence has been supplied of the water usage charges at their rental home, and I consider that those costs (rather than the costs at the property the subject of the dispute) are reflective of any loss incurred by the applicants.

This part of the application must be dismissed.

Electricity charges at the property (Head of loss 9)

As with Head of loss 8, I consider that this is a type of loss which arises from delay and is covered by the liquidated damages provisions. In the alternative, the applicants have not provided evidence of their electricity charges at their rental accommodation. Those charges, and not the charges at the property the subject of the dispute, are the reflective of any quantum of loss which could be recovered in connection with this part of the claim.
This part of the application is dismissed.

For substantially the same reasons as for Head of loss 9, save that they relate to council rates rather than electricity charges (and noting that typically tenants in rental accommodation do not pay rates), this part of the application is also dismissed.

I consider that this part of the application must also be dismissed for substantially the same reasons as for Head of loss 1. The applicants have not provided sufficient evidence to establish both the fact of a loss, and the quantum of compensation sought. They have not provided, for example, the valuation reports for their property and the nearby property that they refer to, nor have they provided any opinion from an independent expert to establish that the driveway has caused a reduction or loss in value in the amount sought.
In the absence of such evidence, it is not clear that the applicants have suffered the loss claimed.

For the above reasons, the Tribunal orders that:

(1) Rawson Homes Pty Ltd is removed as a respondent.

(2) The second respondent, Thrive Homes Pty Ltd, is to pay the applicants, Rachel Shaw and Ben Gluszkowski, the sum of $2,200 within 14 days of these orders.

(3) The application is otherwise dismissed.

(4) The respondents are to file and serve any submissions (and if necessary, evidence) in relation to costs within 14 days of the publication of these reasons.

(5) The applicants may file and serve a response within a further 14 days.

(6) The respondents may file and serve a reply within a further 7 days.

(7) Each party's submissions on costs are not to exceed 10 pages.

(8) The Tribunal is considering dispensing with a hearing on the issue of costs. Any party objecting to this course of action is to set out reasons in their submissions.

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.

Planning and Assessment Act 1979

Administrative Tribunal Act 2013

Administrative Tribunal Rules 2014

Schemes Management Regulation 2016

Profession Uniform Law Application Act 2014

Anderson v Bowles (1951) 84 CLR 310; [1951] HCA 61

Baak v Concrete Services Group Pty Ltd [2016] NSWCATAP 42

Baume v Commonwealth [1906] HCA 92; 4 CLR 97; [1911] 2 KB 775; 13 ALR 22; 143 ER 1163

Beechwood Homes (NSW) Pty Ltd v Hassos [2023] NSWCATAP 184

Britton v Evans [2022] NSWCATCD 139

Cappello v Hammond & Simonds NSW Pty Ltd [2020] NSWSC 1021

Cripps and Another v G & M Dawson Pty Ltd and Another; G & M Dawson Pty Ltd and Another v Cripps and Another. [2006] NSWCA 81

Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268

Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23

Moore v Scenic Tours Pty Limited (No.2) [2017] NSWSC 733

Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; (2003) 77 ALJR 768

Russell v The Trustees of Roman Catholic Church for the Archdiocese of Sydney (2008) 72 NSWLR 559; [2008] NSWCA 217

The Owners - Strata Plan No 21563 v Rutherford [2023] NSWCATAP 326

Vadasz v Pioneer Concrete (SA) Pty Ltd [1995] HCA 14; 184 CLR 102

Vasan v Georges Construction & Building Services Pty Ltd [2023] NSWCATCD 84

Shaw v Rawson Homes Pty Ltd [2025] NSWCATCD 145;

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Judgment (11 paragraphs)

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Cases Cited (22)