Intelligent Building Pty Ltd v Ibrahim (No 2) [2023] NSWCATAP 227

Intelligent Building Pty Ltd v Ibrahim (No 2) [2023] NSWCATAP 227

The builder proved it had paid the owners $10,000 pursuant to the Tribunal order that was later set aside on appeal, had not been repaid, and there was no legal basis for the owners to retain the money; an ancillary repayment order was therefore appropriate. The appeal involved amounts well below $30,000, so costs could not be awarded under r 38A without special circumstances. The owners' opposition to the appeal was not so weak, misconceived, frivolous or vexatious, and did not cause delay or disadvantage, so special circumstances under s 60 (2) were not established. The claim for contractual interest was not properly part of a costs application.

Jurisdiction
Australia
Judgment Date
15 August 2023
Procedural Posture
Miscellaneous Orders Application and Costs Application Arising From a Substantive Appeal Decision / Appeal Panel Determination on the Papers
Outcome
Oral hearing dispensed with; reimbursement order made in favour of the appellant; appellant's costs application dismissed; each party to bear its own costs of the appeal.
Legal Topics
['special Circumstances for Costs in Ncat' 'reimbursement Following Appeal Orders' 'dispensing With Oral Hearing' 'self Represented Party Costs' 'ncat Appeal Costs']
['civil Procedure' 'costs' 'consumer and Commercial'] ['special Circumstances for Costs in Ncat' 'reimbursement Following Appeal Orders' 'dispensing With Oral Hearing' 'self Represented Party Costs' 'ncat Appeal Costs']

Case Brief

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Procedural Posture

Miscellaneous Orders Application and Costs Application Arising From a Substantive Appeal Decision / Appeal Panel Determination on the Papers

Legal Issues

  1. 1 ['Whether an oral hearing should be dispensed with and the application determined on the papers under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW).' 'Whether Samwaiel Ibrahim and Martina George should reimburse Intelligent Building Pty Ltd $10,000 paid under the Tribunal order that was set aside on appeal.' 'Whether the appellant established special circumstances warranting an award of costs under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW).' 'Whether r 38 and r 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) permitted an award of costs without establishing special circumstances.' "Whether the appellant's claims for contractual interest and disbursements could be recovered as costs."]

Ratio Decidendi

The builder proved it had paid the owners $10,000 pursuant to the Tribunal order that was later set aside on appeal, had not been repaid, and there was no legal basis for the owners to retain the money; an ancillary repayment order was therefore appropriate. The appeal involved amounts well below $30,000, so costs could not be awarded under r 38A without special circumstances. The owners' opposition to the appeal was not so weak, misconceived, frivolous or vexatious, and did not cause delay or disadvantage, so special circumstances under s 60 (2) were not established. The claim for contractual interest was not properly part of a costs application.

Court Disposition

Oral hearing dispensed with; reimbursement order made in favour of the appellant; appellant's costs application dismissed; each party to bear its own costs of the appeal.

Orders

  • ['An oral hearing is dispensed with under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW).' 'Samwaiel Ibrahim and Martina George are to pay Intelligent Building Pty Ltd the amount of $10,000 within 28 days of the date of this decision.' "The appellant's costs application is dismissed." 'Each party...