B & M Mitchell Pty Ltd v Mikell Investments Pty Ltd & Divlist Pty Ltd t/as Contemporary Homes [2018] NSWCATAP 63

B & M Mitchell Pty Ltd v Mikell Investments Pty Ltd & Divlist Pty Ltd t/as Contemporary Homes [2018] NSWCATAP 63

Because the appeal was lodged after 1 January 2016, r 38A required the Appeal Panel to apply the first instance costs provisions. The first instance Consumer and Commercial Division proceedings involved an amount claimed and awarded exceeding $30,000.00, so r 38 empowered the Tribunal to award costs even without special circumstances. The builder was the successful party on the appeal, and it was appropriate to order the appellant homeowner to pay the builder's costs of the appeal on a party/party basis.

Jurisdiction
Australia
Judgment Date
14 March 2018
Procedural Posture
Costs Application in Internal Appeal / After Appeal Dismissed; Costs Determined on Written Submissions
Outcome
Hearing dispensed with; appellant ordered to pay respondents' costs of the appeal.
Legal Topics
['ncat Appeal Costs' 'dispensing With Hearing' 'party/party Costs' 'rules 38 a and 38 of the Civil and Administrative Tribunal Rules 2014']
['costs' 'civil Procedure' 'consumer and Commercial Tribunal Proceedings'] ['ncat Appeal Costs' 'dispensing With Hearing' 'party/party Costs' 'rules 38 a and 38 of the Civil and Administrative Tribunal Rules 2014']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Costs Application in Internal Appeal / After Appeal Dismissed; Costs Determined on Written Submissions

Legal Issues

  1. 1 ['Whether a hearing concerning costs should be dispensed with.' "Whether the appellant homeowner should pay the respondent builder's costs of the appeal." 'Whether the Appeal Panel could award costs despite s 60 of the Civil and Administrative Tribunal Act 2013 (NSW), by operation of rr 38A and 38 of the Civil and Administrative Tribunal Rules 2014 (NSW).']

Ratio Decidendi

Because the appeal was lodged after 1 January 2016, r 38A required the Appeal Panel to apply the first instance costs provisions. The first instance Consumer and Commercial Division proceedings involved an amount claimed and awarded exceeding $30,000.00, so r 38 empowered the Tribunal to award costs even without special circumstances. The builder was the successful party on the appeal, and it was appropriate to order the appellant homeowner to pay the builder's costs of the appeal on a party/party basis.

Court Disposition

Hearing dispensed with; appellant ordered to pay respondents' costs of the appeal.

Orders

  • ['A hearing concerning whether a costs order should be made is dispensed with.' "The appellant, B & M Mitchell Pty Ltd is to pay the respondent's costs of the appeal to the respondents, Mikell Investments Pty Ltd & Divlist Pty Ltd t/as Contemporary Homes on a party/party basis as agreed or assessed."]