Kesuma v Gittany (No 2) [2021] NSWCATAP 301

Kesuma v Gittany (No 2) [2021] NSWCATAP 301

Rules 38 and 38A did not apply because the Appeal Panel was not satisfied that the amount in dispute in the appeal exceeded $30,000; the relevant question was whether there was a realistic prospect that the homeowner's wealth would be changed by more than $30,000 as a result of the appeal, not whether the amounts claimed, disputed or ordered at first instance exceeded that sum. The builder's asserted matters did not amount to special circumstances under s 60, because the appeal grounds were open and not untenable, were not particularly complex, the assertion about failure to assist the guiding principle was unsupported, and the alleged sale of the property did not deprive the homeowner of...

Jurisdiction
Australia
Judgment Date
05 October 2021
Procedural Posture
Internal Appeal Costs Application Arising From a Home Building Act 1989 (nsw) Dispute / Costs Determination on the Papers After Dismissal of the Homeowner's Appeal
Outcome
The oral hearing on costs was dispensed with, and the application for costs and other orders was dismissed. Each party was ordered to bear his own costs of the appeal.
Legal Topics
['costs in NCAT Appeals' 'rule 38 a Civil and Administrative Tribunal Rules 2014 (nsw)' 'special Circumstances Under S 60 of the Civil and Administrative Tribunal Act 2013 (nsw)' 'amount in Dispute on Appeal']
['civil Procedure' 'costs' 'home Building'] ['costs in NCAT Appeals' 'rule 38 a Civil and Administrative Tribunal Rules 2014 (nsw)' 'special Circumstances Under S 60 of the Civil and Administrative Tribunal Act 2013 (nsw)' 'amount in Dispute on Appeal']

Case Brief

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Procedural Posture

Internal Appeal Costs Application Arising From a Home Building Act 1989 (nsw) Dispute / Costs Determination on the Papers After Dismissal of the Homeowner's Appeal

Legal Issues

  1. 1 ['Whether an oral hearing on costs should be dispensed with and the costs application determined on the papers.' 'Whether rr 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) applied because the amount claimed or in dispute in the appeal exceeded $30,000.' 'Whether special circumstances existed under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) warranting a costs order in favour of the builder.']

Ratio Decidendi

Rules 38 and 38A did not apply because the Appeal Panel was not satisfied that the amount in dispute in the appeal exceeded $30,000; the relevant question was whether there was a realistic prospect that the homeowner's wealth would be changed by more than $30,000 as a result of the appeal, not whether the amounts claimed, disputed or ordered at first instance exceeded that sum. The builder's asserted matters did not amount to special circumstances under s 60, because the appeal grounds were open and not untenable, were not particularly complex, the assertion about failure to assist the guiding principle was unsupported, and the alleged sale of the property did not deprive the homeowner of...

Court Disposition

The oral hearing on costs was dispensed with, and the application for costs and other orders was dismissed. Each party was ordered to bear his own costs of the appeal.

Orders

  • ['An oral hearing on the issue of costs is dispensed with under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW).' 'The application for costs and other orders are dismissed.' 'Each party is to bear his own costs of the appeal in accordance with s 60 (1) of the Civil and Administrative Tribunal Act...