Hoque v ARZ Building & Constructions Pty Ltd [2017] NSWCATAP 182

Hoque v ARZ Building & Constructions Pty Ltd [2017] NSWCATAP 182

Because the first instance proceedings were in the Consumer and Commercial Division, involved more than $30,000, and the internal appeal was filed after 1 January 2016, rules 38 and 38A applied so that special circumstances were not required and the Appeal Panel had a general discretion as to costs. The appellants were successful on the appeal, so costs should otherwise follow the event, but it was unfair to award them costs for 13 May 2016 because the appeal was not ready for hearing and the hearing date was abandoned due to deficiencies in the appellants' documents and submissions.

Jurisdiction
Australia
Judgment Date
05 September 2017
Procedural Posture
Internal Appeal Costs Decision / Costs Determination After Appeal Allowed, Tribunal Decisions Set Aside, and Matters Remitted to the Commercial and Consumer Division
Outcome
Costs ordered partly in favour of the appellants, with each party to bear its own costs of 13 May 2016 and the respondent otherwise to pay the appellants' costs of the appeal.
Legal Topics
['costs in Internal Appeals' 'special Circumstances for Costs' 'ncat Rules 38 and 38 A' 'costs Follow the Event' 'abandoned Hearing Date']
['costs' 'civil Procedure' 'tribunal Law' 'consumer and Commercial Proceedings'] ['costs in Internal Appeals' 'special Circumstances for Costs' 'ncat Rules 38 and 38 A' 'costs Follow the Event' 'abandoned Hearing Date']

Case Brief

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Procedural Posture

Internal Appeal Costs Decision / Costs Determination After Appeal Allowed, Tribunal Decisions Set Aside, and Matters Remitted to the Commercial and Consumer Division

Legal Issues

  1. 1 ['Whether rules 38 and 38A of the Civil and Administrative Tribunal Rules 2014 applied so that special circumstances were not required before awarding costs of the appeal.' 'Whether the appellants, having succeeded on the appeal, should receive their costs of the appeal.' "Whether the respondent's alleged conduct concerning transcript arrangements and caveats justified an adverse costs order." 'Whether the appellants should be denied costs of the hearing date on 13 May 2016 because the appeal was not ready to proceed.']

Ratio Decidendi

Because the first instance proceedings were in the Consumer and Commercial Division, involved more than $30,000, and the internal appeal was filed after 1 January 2016, rules 38 and 38A applied so that special circumstances were not required and the Appeal Panel had a general discretion as to costs. The appellants were successful on the appeal, so costs should otherwise follow the event, but it was unfair to award them costs for 13 May 2016 because the appeal was not ready for hearing and the hearing date was abandoned due to deficiencies in the appellants' documents and submissions.

Court Disposition

Costs ordered partly in favour of the appellants, with each party to bear its own costs of 13 May 2016 and the respondent otherwise to pay the appellants' costs of the appeal.

Orders

  • ['Each party is to pay its own costs of 13 May 2016.' "Otherwise, the respondent is to pay the appellants' costs of the appeal."]