McPherson v Mace (No 2) [2016] NSWCATAP 198

McPherson v Mace (No 2) [2016] NSWCATAP 198

The Appeal Panel held that s 60 of the Civil and Administrative Tribunal Act 2013 governed costs in this internal appeal because rule 38A did not apply and Mergerditchian was not wrongly decided. The appellant did not establish special circumstances because, apart from the fraud issue, the appeal and the home building compensation issues were not out of the ordinary and the appellant was only partially successful. The respondent established special circumstances only in relation to the allegation of fraud because the allegation was made, denied, not withdrawn or particularised when requested, and then not pressed at the hearing, causing unnecessary disadvantage and expense. A general...

Jurisdiction
Australia
Judgment Date
02 September 2016
Procedural Posture
Internal Appeal Costs Application / On the Papers After Appeal Panel Principal Decision
Outcome
The respondent was awarded costs limited to responding to the fraud allegation; the applications for costs were otherwise dismissed, and the hearing was dispensed with.
Legal Topics
['costs in Internal Appeals' 'special Circumstances for Costs' 'allegation of Fraud in Appeal Ground' 'residential Building Work Compensation Claim']
['civil Procedure' 'costs' 'home Building'] ['costs in Internal Appeals' 'special Circumstances for Costs' 'allegation of Fraud in Appeal Ground' 'residential Building Work Compensation Claim']

Case Brief

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Procedural Posture

Internal Appeal Costs Application / On the Papers After Appeal Panel Principal Decision

Legal Issues

  1. 1 ['Whether the applications for costs should be determined without a hearing.' "Whether the Appeal Panel's power to award costs in the internal appeal was governed by s 60 of the Civil and Administrative Tribunal Act 2013." 'Whether the appellant established special circumstances warranting an award of costs.' "Whether the respondent established special circumstances warranting an award of costs arising from the appellant's allegation of fraud in ground 7 of the Amended Notice of Appeal."]

Ratio Decidendi

The Appeal Panel held that s 60 of the Civil and Administrative Tribunal Act 2013 governed costs in this internal appeal because rule 38A did not apply and Mergerditchian was not wrongly decided. The appellant did not establish special circumstances because, apart from the fraud issue, the appeal and the home building compensation issues were not out of the ordinary and the appellant was only partially successful. The respondent established special circumstances only in relation to the allegation of fraud because the allegation was made, denied, not withdrawn or particularised when requested, and then not pressed at the hearing, causing unnecessary disadvantage and expense. A general...

Court Disposition

The respondent was awarded costs limited to responding to the fraud allegation; the applications for costs were otherwise dismissed, and the hearing was dispensed with.

Orders

  • ['The hearing of the application is dispensed with pursuant to s50(2) of the Civil and Administrative Tribunal Act, 2013.' "The appellant is to pay the respondent's costs of responding to the allegation of fraud raised in ground 7 of the Amended Notice of Appeal, as agreed or as assessed." 'The applications for...