Yang v Oppidan Homes Pty Ltd

Yang v Oppidan Homes Pty Ltd - [2016] NSWCATAP 146 - NSWCATAP 2015 case summary — Zoe

[4]

The Owner's Notice of Appeal

The Owner appeals in respect of both the Decision and the Slip Rule Decision.
By her Notice of Appeal filed 27 August 2015, the Owner identifies many grounds of appeal. These grounds may be considered in three groups: 1. Factual errors made by the Tribunal including: 1. failing to refer to the evidence (ground 1 of Annexure A to the Notice of Appeal); 2. clerical errors in calculation (ground 5 of Annexure A to the Notice of Appeal); 3. making a decision not consistent with some of the Tribunal's findings of fact (ground 11 of Annexure A to the Notice of Appeal); 1. A poor reasoning process or inadequate reasons including: 1. a failure to provide a reasoning process, and inadequate reasons (ground 2 in Annexure A to the Notice of Appeal); 2. a failure to set out the applicable law (respectively grounds 3 and 6 in Annexure A to the Notice of Appeal); 3. failing to consider the evidence (ground 4 of Annexure A to the Notice of Appeal); 4. a failure to apply the contractual terms fairly against both Owner and Builder (ground 7 in Annexure A to the Notice of Appeal); 5. sometimes finding that a lack of response sufficient for a finding of fact against the party that did not respond (ground 8 in Annexure A to the Notice of Appeal); 6. inconsistent findings for preferring the evidence of one party over the evidence of another party (ground 9 in Annexure A to the Notice of Appeal); 1. In addition, the Owner submits that the Tribunal "breached the principle that justice must be seen to have been done" (ground 10 in Annexure A to the Notice of Appeal).
The remaining grounds of appeal identified by the Owner, namely that: 1. The Tribunal gave a decision on 20 March 2015 (ground 12 in Annexure A to the Notice of Appeal) and made amendments to the decision of 20 March 2015 pursuant to s 50 of the CTTT Act (ground 13 in Annexure A to the Notice of Appeal), 2. The Tribunal published a decision pursuant to s 50 of the CTTT Act on 12 August 2015 (ground 14 in Annexure A to the Notice of Appeal), are simply statements of fact. They are not properly to be considered as grounds for setting aside or varying the decisions which are the subject of the appeal.
Particulars of the various errors of the Tribunal alleged by the Tribunal are then set out at pars [16] to [36] of Annexure A to the Notice of Appeal.
In summary, those paragraphs state: 1. The finding in par [26] of the Decision that the Owner was provided with a copy of the contract some time prior to the date of signing was not supported by the evidence and against the weight of evidence. 2. The rejection of the Owner's claim to be entitled to protection under the Contracts Review Act was not supported by reference to evidence, not supported by a reasoning process against the weight of evidence and that the Owner was entitled therefore to protection provided by the Contracts Review Act. 3. The finding that the date of commencement was 23 February 2011 (par [33] of the Decision) was against the weight of evidence. 4. The findings relating to extensions of time generally were against the weight of evidence. 5. The findings relating to the extension of time for the "industry shutdown" (par [34] of the Decision) was not in accordance with cl 9 of the contract, and there was no basis on the evidence upon which the Tribunal could make the finding. 6. In relation to the finding in par [36] of the Decision that there was no dispute about progress claims in general was not supported by the evidence or by the reasoning process that led to that finding. 7. There was no basis for any finding against the Owner by reason of the non-payment of progress claim 7, and therefore no basis for the consequential orders concerning the builder's entitlement to suspend the works or to an extension of time, or to interest on progress claim 7. 8. There was no explanation for the finding in par [37] of the Decision that progress claim 7 claimed in error an amount of $44,000.00 in excess of the correct amount. 9. In the light of agreements reached between the parties, there was no requirement for an assessment of the claims within progress claim 7. 10. In the circumstances the only extensions of time to be allowed should have been the 44.8 days referred to in par [38] of the Decision and the 28 days referred to in par [39] of the Decision. 11. The findings against the evidence of the Owner and the credit of the Owner was not supported by any reasoning or reference to evidence. 12. There was no consideration of the evidence on behalf of the Builder having regard to the Builder's claim of $39,600.00 for "piers" (which was allowed at $18,330.00), or the Builder's two different claims under progress claims 2 and 7. 13. In relation to the finding at par [46] of the Decision that the date for practical completion was 23 May 2012 there was no consideration of the evidence concerning a meeting held on 24 April 2012. 14. In relation to the finding at par [56] of the Decision that the Owner is entitled to no more than $1.00 per day for delay costs, that finding is not supported by reference to evidence or any reasoning process and failed to consider the evidence of the Owner. 15. The finding that the Builder was entitled excavation costs (pars [57(1) - (4)] of the Decision) was against the weight of evidence. 16. Errors were made in pars [57(5) - (7)] of the Decision and in pars [42] - [56] of the Slip Rule Decision in the consideration of the Builder's claim concerning the claim by the Builder in respect of extra piering;. 17. In relation to the Builder's claim for allowances for expenses in relation to windows, doors and fly screens, the Tribunal made an allowance without giving reasons. 18. Errors were made in the calculation of interest. 19. No reasons were given for the finding that the evidence of Mr Cohen and Mr Gill was to be preferred to the evidence of Ms Yang.
In addition, the Notice of Appeal repeated in general terms many of the above grounds as a basis for leave being granted and, in particular, the Owner asserted that there was a substantial miscarriage of justice because the Decision was not fair and equitable and was against the weight of evidence.

[8]

The commencement date of the contract

The Tribunal found at par [33] of the Decision that the commencement date for construction was 23 February 2011. The Owner submits that the Tribunal erred and should have found that the commencement date was 27 October 2010.
The Owner submits that, in determining the commencement date, the Tribunal failed to have regard to the fact that the commencement of the construction (albeit by a demolition firm paid by the Owner) was construction work provided for by the contract "and acted as the date factually from which the contractual obligations under the contract commenced". She submits that the Tribunal erred in its reliance on cl 8.1 of the contract, and ignoring the provision of the contract dealing with the work which was to be undertaken within 40 weeks. It is submitted that "Demolition and Site works" formed part of the works included in the contract.
The Owner submits that, as the work was included in the time provided to complete the construction, it was both factually and legally incorrect for the member to treat the demolition, which needed to occur, as separate from the work undertaken by the Builder, and to treat the whole of the time while approval for variations to the design were obtained as excluded from the time in which the Builder was required to demolish and construct the new house under the contract.
The Owner submits that her evidence on this matter should have been accepted, and that there are substantial consequences for the date of practical completion, including findings as to extensions of time for performance of the contract, and the Owners claim for damages.
In oral submissions, Counsel for the Owner said that cl 8.1 of the contract provided that the Builder is to commence the building works within 20 working days after the later of either the day the Builder receives all necessary building permits and planning approvals for the building works, or the Owner satisfies all of the requirements of cl 4. Clause 4 requires the Owner to provide to the Builder certain documents, described as "essential matters". Counsel submitted that the necessary approvals to commence the work had been obtained and received by the Builder in the form of a construction certificate which enabled the Builder to commence the works. The Decision found that the construction certificate was issued on 21 October 2010 (par [2] of the Decision).
The Owner submitted that the calculation of the commencement date affects the calculation of the final date for completion. The final date for completion should be reduced by the period from 27 October 2010 to 23 February 2011. That would result in a finding that the Builder was in default and failed to complete the work on time. As a consequence, the Owner submits the builder was not entitled to interest on amounts not paid.
The Owner further submits that the Member, in finding other extensions of time in favour of the Builder, did not have regard to the contractual terms and evidence. This submission refers to: 1. The claim from 9 June 2011 for an extension of time of 18 days which was allowed at 25.2 days; 2. The claim from 27 September 2011 for 14 days which was allowed at 19.6 days; 3. The claim for delays due to window issues of 15 days made on 21 July 2011 which was allowed at 21 days; 4. The claim for delay due to "the industry slowdown" of 5 weeks which was allowed notwithstanding that the actual delay was only 4 weeks.
However, in her submissions in Reply, the Owner indicated she did not press the first of these. Accordingly, it does not arise for consideration in this appeal.

[24]

Inadequate Reasons

The Builder's counsel submitted that the Owner's appeal should not be upheld on the basis that the Decision contained inadequate reasons because the Decision satisfied the requirements of s 62(3) of the Civil and Administrative Tribunal Act NSW 2013 (the Act).
The Builder's counsel referred to the High Court decision in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. That case concerned the obligation of the Refugee Review Tribunal to give reasons as required by s 436(1)(c) of the Migration Act. That section required the Tribunal to give the reasons for its decision and to set out the findings on any material questions of fact, and to refer to the evidence or other materials on which the findings of fact were based. Counsel for the Builder submitted that the decision of the High Court is authority for the following principles: 1. If there are no statutory constraints imposed then what comprises a material fact is a matter for the decision maker alone to determine (see pars [115] and [216] of Yusuf). 2. What the applicant thinks is a "material fact" is irrelevant (par [216]). 3. There is no duty on the decision maker to make findings on every question of fact (pars [9], [67] and [68]). 4. There is no duty on the decision maker to make findings on all issues of law and the evidence before the Tribunal. 5. The only duty is to include findings on what the Tribunal considers to be "material findings of fact" (pars [34] and [68]). 6. Any failure to make a finding on an issue is not a failure to observe the required procedures, or a breach of the requirements for reasons (pars [35] and [77]). 7. It is not open to a Court to determine what fact was a material fact and should have perhaps been addressed. That is merits review, not judicial supervision and is impermissible (par [216]).
Builder's counsel submitted that these principles must be borne in mind in considering the Owner's submissions that the Decision and the Slip Rule Decision both displayed inadequacy of reasons. In essence, the Builder's Counsel pointed out that the Member was obliged to only make findings on facts which he considered to be material and was not obliged to make findings on facts which he did not consider to be material or necessary for his decision.
In conclusion, the Builder submits that the Owner's appeal should be dismissed.

[31]

The Builder's submissions

The Builder's submissions are incorporated in its Notice of Appeal.
The only matter (apart from the calculation of interest) which the Builder raises on its appeal is the allowance made by the Tribunal in favour of the Owner in respect of air conditioning, namely $5,436.00. The Builder submits that the figure was correctly calculated from an "accounting point of view", but that the "only slip" the Tribunal made was to omit to add GST. In the Slip Rule Decision, instead of amending the amount to $5,980.00, the Tribunal amended the amount to $15,699.50.
The Builder submits that the Tribunal erred in accepting the Owner's submissions, which were predicated on a lack of understanding of a fundamental principle in relation to progress claims in building contracts. The Tribunal accepted the Owner's submission that the Builder's accounting in the final progress claim did not take account of the receipt of $8,100.00 in progress claim no. 5, but only of the reimbursement. The Tribunal found that the Builder still had to account for the full $15,000.00. The Builder submits that the Tribunal erred in this respect: the receipt of $8,100 (or any other amount previously paid), was taken into account in the figure of $863,958.00 which was deducted from the original contract sum in the final progress claim. The Builder submits at [11]: The simple principle is that by deducting previous payments, the Builder only effectively receives the amount assessed in the final account. It is incorrect to say that the Builder receives the gross amount assessed for air conditioning in the final account, plus the gross amount received in previous progress claims. It does not work that way. [The Tribunal] has been drawn into accounting error by the owner's misconceived submissions.
The Builder also submits that the Tribunal erred in its formulation of the final orders made, in that it did not take into account the requirement of the contract for interest to accrue at the specified rate up to the date when payment is made.
The Builder submits that it suffered a substantial miscarriage of justice in the way in which the matter was decided, in that it was deprived of a chance that was fairly open to it of achieving a better outcome than that which occurred: Mraz v The Queen (1955) 93 CLR 493.
The Builder submits that leave to appeal should be granted as its appeal involves: 1. Issues of principle governing accounting in progress claims in contracts. 2. An injustice which is reasonably clear, and 3. A factual error what was unreasonably arrived at and clearly mistaken.

[34]

Slip Rule Decision

We think it necessary to make some comments about the Slip Rule Decision. The Slip Rule Decision records that following the Decision being published, the solicitors for the Owner made an application to the effect that there had been a mistake made in the calculations concerning the amount payable by the Owner to the Builder. The Owner's application was made pursuant to s 50 of the CTTT Act, being the applicable legislation in relation to these proceedings, which had commenced in 2012.
In summary, s 50 provides that if, after the making of a decision, the Tribunal is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, the Tribunal may direct the Registrar to alter the text of the notice or statement in accordance with the directions of the Tribunal. Section 63 of the Act is to similar effect.
In the Decision, the Tribunal found that the sum of $13,330.00 was due to the Builder for additional piering. The Decision also found that the sum of $5,436.00 was to be allowed in favour of the Owner for air-conditioning. The Owner's slip rule application submitted that the correct allowance in respect of piering was that the Owner should have been given an allowance of $40,104.00 and, in respect of air-conditioning, that the Owner should have been given an allowance of $15,856.00. On the other hand, the Builder submitted that the allowance made for additional piering in the Builder's favour of $13,330.00 was in error and that the correct allowance in favour of the Builder should have been $18,330.00. The Builder also submitted that interest calculations were mistakenly calculated: the allowance for interest in favour of the Builder which was $5,246.00 in the Decision should have been $21,591.00.
In the Slip Rule Decision (which ran for 20 pages) the Tribunal in dealing with the slip rule application changed some of the figures previously decided.
In dealing with the air-conditioning item the Member, in our view, made fresh findings. For example, in par [40] of the Slip Rule Decision the Member found that the Builder's accounting in the final progress claim did not take account of the receipt of $8,100.00 in progress claim 5.
In respect of the adjustment for additional piering, par [45] of the Slip Rule Decision contains fresh findings that the amounts charged for piering were included in progress claims 1 and 2 and in par [51.] The Member appears to have made fresh findings concerning "the evidence, reasoning and calculations" argued for by the Owner.
Section 63 of the Act provides: 63 Power to correct errors in decisions of Tribunal (1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member. (2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct. (3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where: (a) there is an obvious clerical or typographical error in the text of the notice or statement, or (b) there is an error arising from an accidental slip or omission, or (c) there is a defect of form, or (d) there is an inconsistency between the stated decision and the stated reasons.
We are of the view that the slip rule should not be used as a vehicle for the reopening of a decision which has already been published to the parties. There may be an exception in a case where all parties consent to a reopening. In our view, the slip rule mechanism should be limited to the subject matter expressly referred to in s 63 namely for the correction of obvious errors, and should not be a vehicle for revised or fresh findings of fact.
In this respect, we note the following. 1. In Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 McHugh JA (at 449) referred to the inherent power of the Courts of Common Law and the Court of Chancery to correct any clerical mistake or error in a judgment or order if it was the result of an accidental slip or omission (referring to Lawrie v Lees (1881) 7 App Cas 19 at 34-35). His Honour there noted that the "dividing line between a mistake or error which is the result of an accidental slip or omission and a mistake or error which is the product of a deliberate decision has often been difficult to draw". 2. In order for the slip rule to apply, the Court (here the Tribunal) must be satisfied that had the matter been drawn to its attention it would have made the correction at once: Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 453; Newmont Yandal Operations Pty Limited v The J Aron Corporation and the Goldman Sachs Group [2007] NSWCA 195; 70 NSWLR 411 at [137]; Wardle v Agricultural & Rural Financers Pty Ltd (No 3) [2013] NSWCA 207; (2013) 303 ALR 298 at [61]. 3. The slip rule is not applicable where it involves the exercise of an independent discretion not exercised at the time in question: Storey & Keers Pty Ltd & Anor v Johnstone (1987) 9 NSWLR 446; Tonab Investments Pty Ltd v Optima Developments Pty Ltd [2015] NSWCA 287 at [62] to [64].
This case appears to be an exception because both parties treated the slip rule application as an occasion to go beyond the identification of obvious errors and seek a reconsideration of a number of findings.

[36]

The Commencement Date

Clause 8.1 of the contract required the Builder to commence the building works within 20 working days after the day that (a) the Builder receives all necessary building permits and planning approvals for the building works to commence or (b) the Owner satisfies all of the requirements of clause 4, whichever is later.
The Tribunal found that the commencement date of the works was 23 February 2011. The basis for that finding was that the actual building work could not commence until the amended design had been approved. Essentially the Tribunal agreed with the Builder's submissions (and said as much in par [33] of the Decision).
The Owner's submissions assert that a construction certificate was issued on 21 October 2010 and that the calculation of the commencement date should have been made by reference to that date.
The Builder submits that the demolition works were taken out of the contract works at the owner's request and, as a consequence, the work thereafter to be performed under the contract, could not be commenced until the amended plans were approved. Although the demolition work could have been commenced from 21 October 2010 that work was taken out of the contract and the Owner organised the demolition herself.
The Tribunal made no express findings concerning the Builder's submission that the demolition work was taken out of the contract. However, the Member stated in par [33] that he agreed with the Builder's submissions. A review of the Builder's first instance submissions in chief and in reply has been undertaken. They do not state that there was an agreement between the Owner and Builder to vary the scope of works by an agreement to the effect that the Owner would undertake demolition. Rather, the submissions assert that the demolition was undertaken by the Owner on her "initiative and without the Builder's involvement". The Builder submitted that it was impossible to commence the construction of the works, including site excavation until the application to vary the design was approved. The facts concerning how this change in the building works occurred was not the subject of express findings by the Tribunal, but the Tribunal expressly agreed with the Builder's submissions.
Counsel for the Owner took us to the evidence of Ms Yang who stated that the demolition was organised by Mr Guild and undertaken at his direction. This evidence is inconsistent with the evidence given by the Builder which was the subject of the Builder's submission. However, the Tribunal agreed with the Builder's submissions and, in our view, effectively found that the demolition occurred without the Builder's involvement. On the evidence, such a finding was, in our view, open to the Tribunal.
The Builder's submissions also state that, on 29 October 2010, the Builder lodged on behalf of the Owner an application for the approval of an amended design, and that it was impossible to commence the work proposed in the amended application.
Although the Decision did not record explicit findings of fact, it is sufficiently clear that the Tribunal found that the findings asserted by the Builder were accurate. The Decision found that the "actual building work" (which we take to mean the work described in the amended application) could not commence until it was approved, which occurred on 26 January 2011. Neither party contended that the building work, the subject of the approval of 21 October 2010, was intended to be built in the form then approved.
The fact that the approval to commence the work was obtained on 21 October 2010, did not in our view enliven cl 8.1 of the contract, as the Owner contends, given the facts which were found to have occurred. Those facts (being the submission for approval of the amended design) reflected the fact that both the Owner and the Builder did not intend to proceed with the work the subject of the October approval.
The Owner's appeal in respect of the commencement date is therefore dismissed. An error of law has not been identified and nor has one of the leave grounds described earlier been established.

[38]

Dispute about Progress Claims

We accept the Owner's arguments. The Member found that the contract did not provide for progress claims and the Builder does not argue otherwise. The fact that the Owner was content to receive and pay some progress claims does not, in our view, lead to the conclusion that the Builder acquired a right to suspend the works as a result of the Owner not paying progress claim 7 in full.
We reject the Builder's submission that the Owner was estopped from denying the Builders entitlement to make progress claims because she had paid the first six progress claims. In our view, notwithstanding the issue and payment of six progress claims to which there was no finding of a contractual entitlement, the Builder did not have an entitlement to issue and have paid progress claim 7. The Builder's right to suspend the carrying out of the building works is contained in cl 32 of the contract and may be exercised if the Owner is in breach of the contract. In this case the alleged breach is said by the Builder to arise because, as the Member found, the Owner did not pay progress claim 7. In our view, this analysis displays an error in not determining that there was a contractual obligation to pay progress claim 7. Even if the Owner waived a right to refuse to pay the progress claims, that waiver does not extend to a waiver of her right to require the Builder only to suspend in the event of her breach. For such a waiver to have arisen (entitling the Builder to suspend by reason of non-payment of progress claims), it would have been necessary for the Owner to have represented to the Builder that she accepted that the Builder had a right to issue progress claims. There was no finding and no submissions from the Builder that such a representation had occurred.
The principles concerning estoppel have been summarised by Brereton J in Moratic Pty Ltd v Gordon [2007] NSWSC 5 as follows: …In equitable promissory estoppel, it is necessary for a plaintiff to establish (1) that it has adopted an assumption as to the terms of a legal relationship with the defendant; (2) that the defendant has induced or acquiesced in the plaintiff's adoption of that assumption; (3) that the plaintiff has acted in reliance on its assumptions; (4) that the defendant knew or intended that the plaintiff so act; and (6) that it will occasion detriment to the plaintiff if the assumption is not fulfilled. …. In common law conventional estoppel, it is necessary for a plaintiff to establish (1) that it has adopted an assumption as to the terms of its legal relationship with the defendant; (2) that the defendant has adopted the same assumption; (3) that both parties have conducted their relationship on the basis of that mutual assumption; (4) that each party knew or intended that the other act on that basis; and (5) that departure from the assumption will occasion detriment to the plaintiff…
Neither the Decision nor the Slip Rule Decision made findings that satisfied the elements referred to by Brereton J. In particular, there was no finding that the Builder had adopted an assumption as to the terms of the legal relationship with the Owner or that the Owner had induced or acquiesced in the Builder's adoption of that assumption.
In our view, the omission to make findings as to the Builder's entitlement to make progress claims and be paid those claims resulted in the decision to find that the Builder was entitled to suspend the works for 47 days. That finding arose by reason of the error in finding that the Builder was entitled to suspend the works.
The reasoning displays an error or law and this aspect of the appeal is upheld. The consequence is that the finding that the adjusted contractual date for completion was 2 May 2012 (par [43] of the Decision) is in error. On the analysis we have provided the correct date for the adjusted contractual date of completion was 16 March 2012 (47 days prior to 2 May 2012).
The Decision goes on to make findings concerning the date of practical completion. The Builder issued a notice of practical completion on 13 April 2012 (par [45] of the Decision), which the Owner disputed but the Builder then issued a further notice of practical completion being 23 May 2012 which the Owner did not dispute. The Decision found that the actual date of practical completion was 23 May 2012 by reason of the operation of cl 26.6(b) of the contract which deems the date of practical completion to be the date stated in the notice of practical completion in circumstances where the Owner has not paid the amount of the final progress claim or has not given the Builder a notice under cl 26.3 disputing that practical completion has been reached.
The Tribunal found that the Owner was entitled to liquidated damages of $1.00 per day for any delay in completion of the works (par [27] of the Decision). The effect of the error identified above that the Builder was not entitled to suspend the works for 47 days is to increase the liquidated damages payable to the Owner by $47.00.

[42]

Contracts Review Act

The Owner submits that the Tribunal erred by disregarding the pressure "amounting to duress" alleged by her. The Decision records in par [30] that the Owner alleged that she was pressured into agreeing to retain the Builder because, unless she did so, she would not be permitted to have the works which were designed by a company associated with the Builder used by her to erect a building using another builder. The Decision found that there was no evidence of any particular pressure being applied by the Builder. The Decision went on to state that it is usual business practice for a home designer to claim copy right over design plans and drawings.
The Owner submits to the Appeal Panel that she had acquired an implied licence to use the designs produced by the designer and for which she had paid money.
We accept the submission of the Owner that, generally speaking, the engagement for reward of a person to produce material capable of being the subject of copyright carries with it the implied permission to use the material for which it was contemplated that it would be used (see Torpey Vander Have Pty Ltd v Mass Constructions Pty Ltd [2002] NSWCA 263.
The Decision is, in our view, in error in stating that it is "usual and reasonable business practice for a home designer to claim copy right over design plans and drawings", and in so doing to implicitly find that the Owner had not acquired an implied licence to use the design plans. However, there was no finding by the Tribunal that the Builder had represented to the Owner that she had not acquired the right to use the plans. There was also no specific finding by the Tribunal that the Builder's conduct had contributed to the Owner's decision to use the Builder. The specific finding of the Tribunal was that there was "no evidence of any particular pressure being applied by the Builder".
We are of the opinion that there was no error of law relevant to the Decision, and that none of the leave grounds have been established. Accordingly, this aspect of the appeal is to be dismissed.

[44]

Conclusions and Costs

Apart from increasing the amount of the Owner's delay damages by $47.00, no other adjustments to the orders which are the subject of these appeals is required.
Both parties sought costs. The Act provides in s 60 that each party is to pay their own costs, but s 60(2) provides that 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. Section 60(3) provides that in determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the matters described in subs (a) - (g). Subsection (d) refers to the "nature and complexity of the proceedings" and s (g) refers to "any other matter that the Tribunal considers relevant".
In substance, the Owner's appeal has been unsuccessful. In our view, these proceedings were complex and made more complex by the number of appeal points raised by the Owner. In particular, the Notice of Appeal contained a very substantial number of appeal points. The complexity of the Owner's appeal may be fairly described as "out of the ordinary" (to use the phrase of the Court of Appeal to describe "special circumstances": see Cripps v G & M Mawson [2006] NSWCA 84 at [60]).
In our view there are special circumstances in the Owner's appeal justifying an award of costs in favour of the Builder. However, we do not think that the hearing of the appeal was made any longer than it might otherwise have been because Owner's counsel concentrated on the key issues in the Owner's Appeal. Accordingly, it is our view that it is appropriate to award the Builder costs in the Owner's appeal but to reduce the amount of costs by 20%. In other words, we propose to make an order that in the Owner's appeal, the Owner pay the Builder's costs as agreed or as assessed but limited to the amount of 80% of the assessed costs. In the Builder's appeal. We do not think it is appropriate to award costs. The Builder's appeal was not complex and in our view special circumstances do not exist.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (46 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (12)

Cited By (7)