Trindorfer v Civil Project Management Group Pty Ltd; Civil Project Management Group Pty Ltd v Trindorfer (No 2)

(1) In the Owner's appeal: The Owner had demonstrated that the Tribunal at first instance made an error on a question of law by applying the wrong legal principle in the assessment of damages. Accordingly, Orders 1 and 3 made by the Tribunal were set aside and the matter was remitted for reconsideration of the damages to be awarded to the Owner for the removal and replacement of the slab.

(2) In the Builder's cross-appeal: The Builder had not demonstrated an error on a question of law and the Builder's cross-appeal was dismissed.

1. We made the following orders on the basis of the reasoning set out above:

(1) The appeal in 2024/423490 is allowed in part, and the matter is remitted solely for reconsideration of the damages to be awarded to the Owner for removal and replacement of the concrete slab, with leave given to the parties to adduce such further evidence as the Tribunal thinks fit.

(2) The cross-appeal in 2024/423504 is dismissed.

(3) Orders 1 and 3 are set aside.

(4) Order 2 is stayed until further order of the Tribunal or finalisation of the remitted proceedings, whichever is the earlier in time.

(5) The parties are to file any written submissions in relation to costs within 14 days and are to reply to each other's submissions 7 days thereafter. Submissions are to include whether the parties consider that the issue of costs may be determined on the papers in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

1. The effect of Order 5 was that the parties were to file any written submissions in relation to costs within 14 days of the orders (by 6 June 2025) and to reply to each other's submissions 7 days thereafter (by 13 June 2025).
2. On 5 June 2025 the Owner provided submissions seeking an order for costs in the appeal (and not for an apportionment of costs).
3. By way of written submissions lodged on 10 June 2025 the Builder proposed that the Owner was entitled to an amount of costs in relation to both appeals but that the Appeal Panel should adopt an approach of apportioning costs at 50% with respect to both appeals.
4. On 12 June 2025 the Owner provided further submissions in reply to the apportionment issue. However, Order 5 did not provide for submissions in reply from the costs applicant. Whilst noting that the Owner's reply submissions do not raise new issues, it would be inappropriate to allow the Owner to rely on further submissions where leave has not been sought or given to do so.

1. The Owner sought an order that the Builder pay its costs in both the Owner's appeal and the Builder's cross-appeal because the Owner was successful in having the first instance determination remitted for reconsideration on the question of damages.
2. While the Appeal Panel did not accept that ground 2 of the Owner's appeal disclosed an appropriate question of law, the substance of the application relied on ground 1 and in that respect the Owner was successful in setting aside the effect of the decision at first instance.
3. The Owner submitted that apportionment of costs was not appropriate in this case. Appeal ground 2 did not occupy much of the hearing time (being effectively a sub-set of ground 1) and did not unfairly, improperly or unnecessarily increase the time taken for the appeal or the costs. It was not a dominant or separable issue and the time it occupied was de minimus. The Owner referred to Access Training Group Ltd v Jane [2024] NSWCA 204 (Access) at [190] - [191] per Ward P, Payne JA agreeing and Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin & Anor (No 2) [2021] NSWCA 98 at [39] - [40] (Oikos) per White JA, Basten and MacFarlan JJA agreeing.
4. In respect of the Builder's cross-appeal, the Appeal Panel had found that no error of law was identified and the application was dismissed. The Owner submitted that the Owner had identified the failure of the Builder to articulate any question of law in its submissions in response to the appeal and had submitted that the appeal should be dismissed with costs.

1. The Builder noted that the Appeal Panel in Thompson v Chapman [2016] NSWCATAP 6 at [69] - [74] had considered the discretion to award costs as contained in rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules).
2. The Builder acknowledged that its appeal was wholly unsuccessful but contended that the Owner's appeal was only partly successful. The Appeal Panel had accepted that the Tribunal at first instance had made an error on a question of law because it applied the wrong test in its assessment of damages, but the Appeal Panel had not found in the Owner's favour in awarding damages as assessed by the Owner's expert for the removal and replacement of the slab (instead remitting the matter on that point for reconsideration), or in relation to the assessment of damages awarded to the Builder.
3. The Builder accepted that the Owner was entitled to an amount of costs in relation to both appeals but then rejected the Owner's submissions that he should be entitled to costs in both appeals, due to the Owner only being partly successful in his appeal. The Builder contended that the time spent on the unsuccessful points of the Owner's appeal was not de minimus: both appeals were heard together and consumed equal time. The Owner's appeal was 'first in time' and as such any additional time spent dealing with the Builder's appeal 'would have been minimal'. The Owner's appeal was a separate issue to the matters raised by the Builder and, whilst not dominant, it was of equal standing. Whilst it could be said that one aspect of the Owner's appeal may be a 'sub-set' of his appeal, the same could not be said with respect to his challenge to the damages awarded to the Builder. The Appeal Panel had dismissed this part of his appeal as it did not raise any question of law and leave to appeal was not sought.
4. To the extent that the Owner relied on Oikos, the Appeal Panel proceedings could be distinguished because the matter was to be remitted on the Owner's principal appeal point.
5. Viewed collectively, the proceedings had resulted in a 'mixed result' and, as such, the Appeal Panel should adopt an approach of apportioning costs as suggested in Access on an 'impressionistic basis'. The Builder suggested that costs should be apportioned at 50% with respect to both appeals.

(1) Should a hearing on costs be dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act)?

(2) Which legislative provisions and legal principles apply to the costs application?

(3) Should the Appeal Panel make a costs order?

(4) Who is the successful party?

(5) On what basis should any costs order be made?

Should a hearing on costs be dispensed with in accordance with s 50(2) of the NCAT Act?

1. Under s50(3) of the NCAT Act, the Tribunal may not make an order dispensing with a hearing unless the Tribunal has first afforded the parties an opportunity to make submissions about the proposed order and taken the submissions into account. This also applies to the Appeal Panel in relation to an appeal.
2. Order 5 of the Appeal Panel's orders in the principal decision required submissions to include whether the parties considered that the issue of costs could be determined on the papers. The Owner submitted that it was appropriate that the question of costs be determined in the absence of the parties by considering their written submissions and without need for a hearing. The Builder also noted the Owner's consent to the costs being determined on the papers in order to facilitate the just quick and cheap resolution of the real issues in dispute.
3. The parties have been afforded an opportunity to make submissions. The costs issues can be adequately determined in the absence of the parties by considering the written submissions and any accompanying documentation. Accordingly it is consistent with the Tribunal's guiding principle under s 36 of the NCAT Act to dispense with a hearing in relation to costs.

Which legislative provisions and legal principles apply to the costs application?

1. Under ss 60(1) and 60(2) of the NCAT Act, each party to proceedings in the Tribunal is to pay the party's own costs and the Tribunal may award costs in relation to an appeal only if it is satisfied that there are special circumstances warranting an award of costs.
2. In proceedings commenced in the CCD, by reason of the operation of s 35 when read with par (a) of the definition of "procedural rules" and the definition of "Tribunal rules" in s 4(1) of the NCAT Act, s 60 is subject to the NCAT Rules.

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 -

...

(b) the amount claimed or in dispute in the proceedings is more than $30,000.

1. Rule 38A of the NCAT Rules relevantly provides:

38A Costs in internal appeals

...

(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.

1. For the purpose of r 38A of the NCAT Rules the amount claimed or in dispute is the amount in dispute on appeal, not the amount in dispute in the proceedings at first instance: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [57]; specifically:

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.

1. Both parties acknowledged that the amount claimed by each party in the proceedings at first instance was more than $30,000. However, neither party's submissions addressed whether the amount claimed or in dispute in the appeal or the cross-appeal was more than $30,000 for the purposes of rule 38A.
2. For rule 38A to apply to either proceeding (the appeal and the cross-appeal), the amount claimed or in dispute in that proceeding must be greater than $30,000. It is not sufficient merely for the threshold to be met in one proceeding for rule 38A to apply to both (see Hanave Pty Ltd v Wine Nomad Pty Ltd; Wine Nomad Pty Ltd v Hanave Pty Ltd (No 2) [2022] NSWCATAP 361 at [63]).
3. In the Owner's appeal, the Owner contended that:

(1) The Tribunal erred in law in assessing the proper measure of the applicant's [the Owner's] damages in light of its finding that the respondent [the Builder] was in breach of the contract and the statutory warranties;

(2) The Tribunal erred in law in finding that the respondent [the Builder] was entitled to be paid the sum of $30,723 for work which was found to be in breach of the contract, in breach of the statutory warranties and/or had not been performed.

1. It was the Owner's case that, once the breach of the statutory warranties was established, the proper measure of the Owner's damages was the cost of removing and replacing the defective slab. That cost was quantified at the hearing by the Owner's building expert, Mr Moore, in his report dated 19 August 2022 in the sum of $84,095.94.
2. The Builder contended that the Tribunal did not err in law in assessing the proper measure of the Owner's damages, but did err in law in its finding that the Builder had breached the contract between the Owner and the Builder. Further, the Tribunal erred in finding that the Builder was limited to the sum of $30,723 rather than finding the actual sum of compensation to which the Builder was entitled was the entire value of the 'shed' which could not be reused. The Builder contended that the Tribunal should have ordered the Owner to pay compensation of $87,400.00.
3. Although neither party was awarded the amount that it sought in the Owner's appeal, setting off the amounts which were sought by each party against the amounts which were awarded at first instance (see Timilty Constructions Pty Ltd v Culina (No 2) [2023] NSWCATAP 148 at [18]) demonstrates that the amount in dispute by both parties was greater than $30,000 in the Owner's appeal and rule 38A applies to that proceeding.
4. In the Builder's cross-appeal, the Builder contended that the Tribunal should have awarded to the Builder the full contract price of $85,945.00. After further discussion as to which stage of the contract construction had reached, counsel for the Builder conceded that the Builder was not entitled to claim for Stage 4 and the amount claimed by the Builder was reduced by the amount claimed for Stage 4 ($15,285).
5. The Builder sought more than $30,000 above what it had been awarded at first instance in the cross-appeal.
6. Rule 38A applies to both appeals and the discretion to award costs is enlivened.

1. In Vella v Mir (No 3) [2020] NSWCATAP 17 (Vella (No 3)) at [28]-[30] the Appeal Panel summarised the relevant principles on the Tribunal's (and, by extension, the Appeal Panel's) exercise of its discretion to award costs, as follows:

28. Clause 38 gives the Tribunal a wide discretion to make an order for costs. It does not specify the factors the Tribunal must take into account in exercising the discretion, although the discretion to make such an order must be exercised judicially: see, for example, Ruddock v Vadarlis [2001] FCA 1865 at [9].

29. Where an application has been heard and determined on the merits and Clause 38 applies, the appropriate starting point for the exercise of the discretion is not that the parties are to pay their own costs. Rather, it is the well-established position at common law; that is, that the purpose of making a costs order is to provide compensation to the party in whose favour the order is made for the expense the party has been put to in prosecuting or defending legal proceedings. In general terms, this means that a party who is successful is entitled to an order for costs in its favour, subject to exceptions generally involving misconduct on the part of that party: Latoudis v Casey [1990] HCA 59; [1990] 170 CLR 534; Oshlak v Richmond River Council [1998] HCA 11.

30. In BNT Constructions Pty Ltd v Allen [2017] NSWCATAP 186 the Appeal Panel, having set aside a costs order made in the Consumer and Commercial Division, decided to re-exercise the costs discretion. Clause 38 was the applicable costs provision in that case. At [67] the Appeal Panel noted the following principles relevant to the exercise of the discretion:

(1) the starting point is that a successful party should be entitled to an order for costs in his favour;

(2) an award of costs is by way of an indemnity and not as punishment;

(3) there is no absolute rule that, absent disentitling conduct, a successful party is to be compensated by the unsuccessful party;

(4) the factors to be considered are not to be confined as to do so would constrain the general discretion;

(5) the relative success of the parties on different issues and the time taken to determine them may be relevant;

(6) the nature of the proceedings is relevant;

(7) the proper exercise of the discretion requires a decision maker to do justice between the parties and to exercise the discretion having regard to relevant considerations and in a manner which is not arbitrary and capricious.

1. As rule 38A applies, in ordinary circumstances, costs would follow the event and award of costs would be made to the successful party.

1. The question to be asked in determining which was the successful party was considered by Ward J (as she then was) in Quest Rose Hill Pty Ltd v White [2010] NSWSC 1190 (at [67]), to include the question "Had the plaintiff won anything of value or anything he could not have won without fighting the action through to a finish?"
2. The Builder rightly conceded that its cross-appeal was wholly unsuccessful. The Owner was the successful party in that appeal.
3. In relation to the Owner's appeal, the Builder contends that the Owner was only partly successful.
4. The Appeal Panel had found that the Tribunal at first instance made an error on a question of law by applying the incorrect test for damages. However, the Owner was unsuccessful in relation to dislodging the order for damages which had been made in the Builder's favour and did not obtain the order awarding the amount of $84,095.94 for removing and replacing the slab as assessed by the Owner's expert. Instead, the Appeal Panel had remitted the matter to be redetermined as to the assessment of damages for removal and replacement of the slab.
5. For the reasons set out below, we have found that the Owner was the successful party in both the appeal and the cross-appeal and is entitled to be awarded costs on the ordinary basis in both proceedings.

1. The Appeal Panel in Thompson v Chapman [2016] NSWCATAP 6 at [69] - [74] set out:

69 The starting point in exercising [the costs] discretion is that the "usual order for costs" is that a successful party should be entitled to an order for costs in their favour: see Latoudis v Casey [1990] HCA 59; [1990] 170 CLR 534 per Mason CJ at 554 and Oshlack v Richmond River Council per McHugh J at 97.

70 The reason for such an order is that it is appropriate for the party who incurred costs caused by the other party in litigation to be reimbursed. Further, an award of costs is by way of an indemnity to the successful party and not as punishment of the unsuccessful party: see Latoudis v Casey per Mason CJ at 543 and McHugh J at 567 and in Oshlack v Richmond River Council per Brennan CJ at 75.

71 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: see Oshlack v Richmond River Council per Gaudron and Gummow JJ at 88 and Kirby J at 121 - 123.

72 The factors to be considered in awarding costs in a particular case are not to be confined as to do so would constrain the general discretion. However it is clear from the authorities that factors that might influence whether the usual order for costs should apply and, if so, to what extent include:

(1) 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: see for example Bostick Australia Pty Ltd v Liddiard (No 2) [2009] NSWSCA 304; and

(2) Whether, by reason of the nature of the proceedings the usual rule should otherwise be displaced in whole or in part: see Oshlack v Richmond River Council per Gaudron and Gummo JJ at 41 - 44.

73 An example of such an exception was the case of Dee-Tech, a claim for relief against forfeiture. In that case the Court determined that the entitlement of the lessee (Dee-Tech) to exercise an option for renewal required the favourable exercise of a discretion under s 133(F) of the Conveyancing Act 1919. In that case, White J said at [69]:

The fact that Dee-Tech was in breach of the lease and was not entitled to exercise its option of renewal except for a favourable exercise of discretion under s 133F, is a reason why costs need not follow the event. On the other hand, the fact I found it entitled to conditional relief against forfeiture is a reason why it should have at least a proportion of its costs, reflecting the extent to which costs were increased by Needam Holdings' resistance to its claim.

74 However, as White J made clear in Dee-Tech, these are but some of the factors which need to be considered and weighed against each other in determining what order for costs should be made. Other factors considered by White J included whether or not the resistance of Neddam Holdings "went beyond what was reasonable" and pursued issues unsuccessfully and that Neddam was not successful on the predominate issues litigated: per White J at [70] - [71]. Further, the case of Dee-Tech is an example of those cases referred to in Oshlack where, by reason of the nature of the relief sought, it is appropriate for a claimant to pay the costs of the respondent at least up until the stage where the conduct of the respondent and/or issue put into dispute make it just and reasonable for the respondent to pay the successful applicant's costs.

75 That is not to say that, in all circumstances, an applicant who first requires an order in their favour in order to obtain the relief sought should be deprived of the whole or even part of their costs of the proceedings. Each case must be determined on its own facts and where the parties may, without order of a Court or Tribunal, agree to resolve all issues between themselves prior to the commencement of any proceedings, this is also a matter which needs to be considered in determining the proper exercise of any discretion in connection with the award of costs.

76 In short, 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: see Oshlack v Richmond River Council per Gaudron and Gummo JJ at [22] and McHugh J at 65.

1. As acknowledged by the Builder, the Owner was entirely successful in relation to the Builder's cross-appeal. There is no basis to apportion costs in that proceeding as sought by the Builder. Accordingly, the Owner is awarded costs in the cross-appeal on the ordinary basis, as agreed or, if not agreed, then 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.
2. Regarding the Owner's appeal, the Owner was successful in dislodging the order made for damages to be paid by the Builder, and having that amount reassessed in accordance with the correct test as set out in Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613 (at 617 - 618) (Bellgrove), The Commonwealth of Australia v Amann Aviation Pty Limited [1991] HCA 54; (1992) 174 CLR 64 (Amann) and Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd [2017] NSWCA 27; (2017) 94 NSWLR 108 to encompass the demolition of the slab, removal of the spoil and replacement of the slab.
3. Although we did not consider that we had sufficient opportunity to consider evidence to uphold the Owner's contention that they should be awarded damages in line with the assessment of their expert, the Owner was successful in obtaining orders for the question of the assessment of damages for demolition of the slab, removal of the spoil and replacement of the slab to be remitted to the Consumer and Commercial Division of the Tribunal for reassessment in accordance with the correct test. This was not the Owner's preferred option, but was an alternative which remained open on the Owner's arguments and was itself a successful outcome for the Owner.
4. Similarly, the fact that the Owner's further contentions were not made out did not detract from the Owner's overall success. The Owner's further contentions were dealt with quickly as alternatives to the Owner's main contention that the amount of damages was incorrectly assessed. The consideration of the Owner's further contentions was insubstantial in comparison to the amount of time spent dealing with the issue as to the correct test for damages and the cross-appeal.
5. Contrary to the Builder's assertion, equal time had been allocated at the beginning of the appeal hearing for the cross-appeal. The fact that the Builder chose to address issues relating to both the appeal and the cross-appeal in opening submissions was a matter for them. Considerable time was spent discussing and considering the issues raised in the cross-appeal and the Builder's argument that minimal additional time was spent dealing with the Builder's appeal is inaccurate.
6. Both parties raised the NSW Court of Appeal decisions in Access and Oikos.
7. Briefly, in Access, there were a number of issues in the proceedings on which there were varying degrees of success. The identification of the "event" for the general rule as to costs following the event was complicated by the fact that there were two sets of proceedings (with different, though related, parties) and, at least on first blush, mixed success in both sets of proceedings _._Ward P took the approach (at [182] - [199] Payne JA agreeing at [201]) that where there are multiple "events" for the purposes of the r 42.1 of the Uniform Civil Procedure Rule 2005 (NSW), the apportionment of costs across multiple issues can properly be done on an impressionistic basis. Ward P noted (at [190] - [191] and [198]):

190 ...a tension between the accepted general rule that a successful party should have the whole costs of the proceeding (including the costs of an issue on which it has failed) ... and the recognition that in an appropriate case a costs order may be formulated to reflect the degree of success on distinct issues...

191 ... Relevant circumstances in which apportionment across different issues have been said to include: where a successful party has, in respect of one or more issues, "unfairly, improperly, or unnecessarily increased the costs" ...; where the bulk of the time has been taken on an issue on which the unsuccessful party had succeeded ...; where a particular issue or group of issues is clearly dominant or separable ...

...

198 Without having the familiarity that the primary judge had as to the conduct of the trial (and without the benefit of submissions as to time spent on particular issues or the like) it is difficult to apportion costs across those separate "events". However, the authorities to which I have referred above make clear that the apportionment of costs across multiple issues can properly be done on an impressionistic basis

1. Given that some of the set-off claims failed in that case, Ward P found it was appropriate, on a broad-brush approach, to order that the cross-respondents pay 75% of the cross-appellant's costs of the primary proceedings.
2. In Oikos, the Court of Appeal determined that the respondents should pay 50% of the appellant's costs of the proceedings below. White JA (Basten and MacFarlan JJA agreeing) set out the basis of his reasoning at [28] - [29]:

28 Once it is decided that an otherwise successful plaintiff has failed on a severable or dominant issue such that it is not appropriate that the plaintiff receive all of his or her costs, in deciding how the discretion as to costs should be exercised to achieve fairness ... the perspective of both parties should be considered. The respondents were successful at trial on the type 2 defect issue, but Oikos was successful on the type 1 defect issue that was substantially more complex, involved the giving of more evidence, and took longer to determine. On balance Oikos had more success than did the respondents. This should be reflected in the costs orders.

29 Where courts have taken an issue by issue approach to the making of costs orders, the orders have taken a variety of forms. Sometimes the failure of a successful party on one or more issues will lead to a reduction in the percentage of costs payable to that party. Sometimes failure on particular issues may result in there being no order as to costs of the proceedings, or may result in an order being made for the payment of the otherwise unsuccessful party's costs. Sometimes orders may be made for payment by both parties of a proportion of the other party's costs ...

1. The approach taken in Access and in Oikos (in relation to the costs of the proceedings at first instance) is particularly directed towards the circumstances in those cases, where there was mixed success. That approach does not suit the circumstances of these proceedings, where the Owner is the successful party in both proceedings and no disentitling behaviour on the part of the Owner has been established. The Owner succeeded on the central point in the appeal that the Owner's damages were incorrectly assessed. The Owner's points which did not prevail were not dominant or severable. The Builder's argument that the costs award should be effectively halved is not made out. Nor is any argument for apportionment of damages.
2. The Owner referred to the Court's findings in Oikos (at [39] - [40]) in relation to the respondent being ordered to pay the costs of that appeal to the appellants_:_

39 In any event, if there were power to do so, I would not vary the order for the costs of the appeal. I accept that the issue of damages for the type 2 defects was a discrete issue and that the respondents succeeded in maintaining the award of damages for costs of rectification and for costs incurred in obtaining Mr Murphy's 2012 report. They also maintained the award of damages of $5,000 for the costs of a project supervisor for remedial work about which Oikos made no submissions. The time spent and submissions directed to these questions on appeal were de minimis.

40 Sub-issues upon which Oikos did not succeed on appeal in relation to the type 1 defects were not severable, nor dominant. I would not make a different costs order for the costs of the appeal, even if there were power to do so.

1. The Builder sought to distinguish Oikos on the basis that the appeal resulted in a remittal. This is not a reason for distinguishing the Court of Appeal's view that a discount to costs would be inappropriate where issues on which an otherwise successful party did not succeed were not severable or dominant.
2. The Appeal Panel took a similar approach in Martin & Sidgreaves v Big Country Developments Pty Limited [2023] NSWCATAP 77 at [35]:

35 The principles in relation to the apportionment of a successful party's costs do not warrant the order for the Appellants' costs of the appeal to be dissected in the way suggested by the Respondent. Generally, a successful party's entitlement to the whole of the costs of the proceedings should not be discounted to allow for another party's success in a separate issue that played a very minor part in the proceedings as a whole_: Macourt v Clark (No 2)_ [2012] NSWCA 411 at [7]. In Hawkesbury District Health Service Ltd v Chaker (No 2) [2011] NSWCA 30 at [14], the Court of Appeal held that the severability of one issue on which the successful party failed is not, without more, sufficient to warrant departure from the general approach. The exercise of discretion will often depend upon matters of impression and evaluation: Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 at [11].

1. We do not consider the issues raised by the Builder to warrant departure from the usual approach that costs should follow the event.
2. The Owner was the successful party in both proceedings. The Owner is entitled to costs on the ordinary basis in both proceedings.

(1) A hearing on costs is dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013.

(2) The costs respondent (the Builder) is to pay the costs applicant's (the Owner's) costs of, or incidental to, the appeal and the cross-appeal with such costs, if not agreed, to be assessed in accordance with the Legal Profession Uniform Law Application Act 2014 (NSW).

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.