LMA Contractors Limited v Changizi [2017] NSWCATAP 145

LMA Contractors Limited v Changizi [2017] NSWCATAP 145

Rule 38 applied to the appeal costs application through Rule 38A because the first instance proceedings were Consumer and Commercial Division Home Building Act proceedings and the amounts claimed exceeded $30,000. The Appeal Panel could not determine costs of the first instance proceedings where no costs application had been made before the Tribunal Member. As to appeal costs, the appellant had some success by reducing the amount payable by $16,653.03, so the respondents had not achieved substantial success warranting a costs order in their favour. The respondents' application for costs of the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
06 July 2017
Procedural Posture
Costs Application in an Internal Appeal / Appeal Panel; Heard on the Papers After Decision on Appeal
Outcome
Respondents' application for costs of the appeal dismissed.
Legal Topics
['costs in Internal Appeals' 'rule 38 a of the Civil and Administrative Tribunal Rules 2014' 'costs Discretion Under Rule 38' 'jurisdiction to Award Costs of First Instance Proceedings' 'mixed Success on Appeal']
['costs' 'civil Procedure' 'consumer and Commercial' 'home Building'] ['costs in Internal Appeals' 'rule 38 a of the Civil and Administrative Tribunal Rules 2014' 'costs Discretion Under Rule 38' 'jurisdiction to Award Costs of First Instance Proceedings' 'mixed Success on Appeal']

Case Brief

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Procedural Posture

Costs Application in an Internal Appeal / Appeal Panel; Heard on the Papers After Decision on Appeal

Legal Issues

  1. 1 ['Whether Rule 38 or section 60 of the Civil and Administrative Tribunal Act 2013 governed the costs application in the internal appeal.' 'Whether the Appeal Panel could determine costs of the proceedings at first instance where no costs application had been made before the Tribunal Member.' "Whether the respondents should receive their costs of the appeal notwithstanding the appellant's partial success."]

Ratio Decidendi

Rule 38 applied to the appeal costs application through Rule 38A because the first instance proceedings were Consumer and Commercial Division Home Building Act proceedings and the amounts claimed exceeded $30,000. The Appeal Panel could not determine costs of the first instance proceedings where no costs application had been made before the Tribunal Member. As to appeal costs, the appellant had some success by reducing the amount payable by $16,653.03, so the respondents had not achieved substantial success warranting a costs order in their favour. The respondents' application for costs of the appeal was dismissed.

Court Disposition

Respondents' application for costs of the appeal dismissed.

Orders

  • ["Koroush Changizi and Sujitra Boonta's application for the costs of the Appeal in these proceedings is dismissed."]