M and PG Projects Pty Ltd v Robert Groombridge t/as Northern Beaches Bricklayer [2022] NSWCATAP 392

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: M and PG Projects Pty Ltd v Robert Groombridge t/as Northern Beaches Bricklayer [2022] NSWCATAP 392 Hearing dates: 12 December 2022 Date of orders: 19 December 2022 Decision date: 19 December 2022 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member D Fairlie, Senior Member Decision: (1) Leave to appeal is refused. (2) The application of the respondent that the appellant pays the costs of the appeal is dismissed. Catchwords: APPEALS — Leave to appeal — Principles governing – leave to appeal refused COSTS — Party/Party — application by the respondent that the appellant pay the costs of the appeal dismissed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 60, 80, Sch 4, cl 12 Civil and Administrative Tribunal Rules 2014 (NSW), rr 25, 38, 38A Home Building Act 1989 (NSW) Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Texts Cited: NCAT Consumer and Commercial Division Guideline – Costs Category: Principal judgment Parties: M and PG Projects Pty Ltd (Appellant) Robert Groombridge t/as Northern Beaches Bricklayer (Respondent) Representation: M Gillespie (Authorised Officer) (Appellant) Respondent (Self Represented) File Number(s): 2022/00286866 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Consumer and Commercial Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 25 August 2022 Before: S Corley, Senior Member File Number(s): HB 22/12859

REASONS FOR DECISION

Overview 1. This is an internal appeal from the decision of the Consumer and Commercial Division (CCD) of the Tribunal made on 25 August 2022 in proceedings between M and PG Projects Pty Ltd (M and PG Projects), and Robert Groombridge (Mr Groombridge). The Tribunal dismissed the proceedings (the Tribunal Decision). 2. We have decided to refuse leave to appeal and to dismiss Mr Groombridge's application for the costs of the appeal.

The factual background 1. Mathew Gillespie (Mr Gillespie) is the sole Director of M and PG Projects. 2. Mr Groombridge carries on the business of a bricklayer under the name Northern Beaches Bricklayer. 3. Shortly prior to 29 November 2021, M and PG Projects engaged Mr Groombridge to repoint the existing brickwork at a property at Neutral Bay. 4. Between 29 November 2021 and 31 December 2021, Mr Groombridge carried out the repointing of the existing brickwork at the property. 5. On 20 January 2022, a brick cleaner engaged by M and PG Projects commenced acid cleaning of the repointing work carried out by Mr Groombridge. 6. In February 2022, M and PG Projects alleged that the repointing of the existing brickwork at the property carried out by Mr Groombridge was defective and a dispute arose between the parties.

The proceedings between the parties in the Tribunal 1. On 24 March 2022, M and PG Projects as the applicant commenced proceedings HB 22/12859 against Mr Groombridge as the respondent by filing an application in which he: 1. claimed an order for the payment of $10,620 under the Home Building Act 1989 (NSW) for breach of statutory warranty; 2. set out the following details of the dispute: Northern Beaches bricklaying was engaged to re - point the existing brick at the property, because northern beaches bricklaying used a motar (sic) mix of 4:1 the motar (sic) had set to hard to clean. When the brick cleaner cleaned the brick a lot of damaged has occurred, the brick cleaner had spent additional time and product to try and get the brick to an acceptable level. I have now received a quote from another masonry contractor to rectify the work The costs are as follows; Brick cleaning $1000 Brick re- pointing $6820 Site management $2800 1. On 25 August 2022, the hearing took place, and the Tribunal made the Tribunal Decision. At the hearing: 1. M and PG Projects relied on a bundle of documents (the M and PG Projects CCD documents) comprising: 1. "Statement of [Mr Gillespie] and timeline"; 2. "Email Defects Notification to Northern Beaches Bricklayer dated 15 & 22 February including the M&PG Projects Defects Notification"; 3. "Email response from Robert Groombridge confirming 4:1 mix or as he states M4"; 4. "Robs Repointing Quotation #00227 dated 21 March 2022 to rectify the defective scope of works" (the Robs Repointing Quotation); 5. "SNJ Building Consultants - Expert Witness Report dated 15 June 2022" (the SNJ Report) which: 1. had been prepared by Steven Nakhla (Mr Nakhla) who is a building consultant with extensive qualifications and experience following an inspection of the property on 30 May 2022; 2. relevantly included the following opinions: 5.1.4 The national construction code calls for a mortar mix of 1:1:6 (Cement:Iime:sand). 5.1.5 See excerpt below of National Construction Code 2019- Volume Two - Section 3.3.5.4 Mortar Mixes 3 3 5 4 Mortar mixes Mortar used for masonry construction must comply with AS 3700 or AS 4773 except that the mortar may be mixed by volume in the proportions stated in Table 3.3.5.2 Table 3.3.5.2 Acceptable mortar mixes Mortar mix by volume Cement:lime:sand … General purpose 1:1.6 (General use) … 5.1.6 The mix used for the repointing works was 1:1:4 which contravenes the National construction code requirements. … 5.1.8 The result of the mortar mixed used is a much harder mortar (due to the higher content of cement) and this cannot be acid washed properly due to its hardness. 5.1.9 Consequentially, the visual finish of the brickwork is unacceptable, and an obvious poor finish compared to all other walls. 5.1.10 The poor mortar finishes are affecting the front porch and right elevation to corner. … The issue of deficiency The incorrect mortar mix was used creating a poorly completed visual finish. The reason for each opinion expressed The reasons for opinions expressed is based on site inspection conducted and my observations. The issues identified above are within my area of expertise. 1. relevantly included a photo appendix containing 60 coloured photographs of brickwork of the house on the property without any description of what is depicted in each photograph; 1. Mr Groombridge relied on a bundle of documents (the Groombridge CCD documents) including the emails of Christopher Mouatt (Mr Mouatt), Director of BC& M Advisory Pty Ltd sent on 11 July 2022 (the Mouatt emails) which: 1. stated that Mr Mouatt has the following qualifications and experience: Chris has 20 years' experience in the making and developing of clay bricks arid payers, combined with experience in the making of cement, quality management, laboratory accreditation, arid accreditation and research and development for ceramic products. His depth of knowledge covers masonry, mortar, bricklaying, brick cleaning and the causes, identification and rectification of brick staining problems. He has significant experience in related disciplines covering building, construction, engineering, geology and mining. 1. relevantly included the following opinions: M4 mortar is harder and resists acid belier than M3 or M2 mixes. … The mortar class required, as you are aware, is specified by the engineer or it is based on the distance from salt waler or contact with saline soils. If you were required to provide an M4 mortar and the mix is an M4 mix then no matter how hard it Is. the builder has no case. If the mortar Is an M4 mortar mix and no specific mortar was called for then it Is difficult for the builder as M4 mortar is the highest class of mortar and it may be used anywhere. If an M3 was specified by the builder arid you provided an M4 mortar the builder has a case. … Your case is that the Australian Standards sets minimum mortar class but it is always possible to use a higher class mortar and the cleaner should be able to clean an M4 mortar with acid and not use excessive pressure to blow it oil and risk damage to the bricks and mortar. 1. Messrs Gillespie and Groombridge gave concurrent oral evidence; 2. Messrs Nakhla and Mouatt did not give any oral evidence.

The Tribunal Decision 1. In the Tribunal Decision, the Tribunal after dealing with the factual background set out its findings which are not lengthy and can conveniently be set out in full: 5. The brickwork was cleaned in February 2022. This resulted in damage to the mortar. The cleaning was performed with acid wash and a high pressure jet hose. 6. The applicant says that more vigorous cleaning was required because the applicant used mortar mix (M4) which was inappropriate for the environment. 7. The respondent says that M4 mix is an appropriate mix. It is the recommended mix for exposed environments such as locations close to the coast. Althought (sic) this home was not close to the coast he says this did not prevent its use in this situation. 8. I note that there are different prescriptions for the M4 mix. Some mixes include lime but another mix includes only cement and sand in a 1:4 ratio (p5 respondent's documents). 9. The respondent says that he recommended hand washing of the repointing but the applicant disagreed and said that he would organise cleaning. 10. The respondent has produced part of the Brick Technical Manual (Brickworks Building Products) which notes that precautions must be taken if high pressure water jet cleaning is undertaken. It warns that if mortar joints or bricks are being damaged the pressure is too high or the water jet is too close to the wall. The manual also says high pressure cleaning is not recommended for dry press bricks. The bricks in this situation are dry press bricks. 11. The applicant did arrange a third party brick cleaner who cleaned the bricks with acid and high pressure hose. The applicant said that this was the quickest and cheapest way of cleaning the brickwork and is generally accepted. 12. However, this was also the immediate cause of the loss of mortar. 13. The applicant has presented an expert report from SJN Building Consultants dated 15 June 2022. 14. At clause 5.1.5 of the report there is an excerpt from the national Construction Code (NCC) of mortar mixes. The table 3.3.5.2 is titled "Acceptable mortar mixes". The general use for general purpose mortar mix is 1:1:6. 15. I understand that the highlighted mix is also known as M3 in AS 3700-2001. 16. The respondent makes the point that this is merely an acceptable standard and there is no prohibition on using a higher standard which produces a harder mortar. 17. The photographs included in the report were all taken after the washing which resulted in the damage. 18. The respondent today stated that the brick cleaner noted immediately that the wash was very difficult and likely to cause damage. Yet the process was not halted. 19. On the evidence produced by the parties I am not persuaded that the M4 mortar should not have been used. However, its use did have ramifications for the cleaning process. The applicant wished to adopt the quickest and cheapest method of cleaning. This should have been clearly communicated to the respondent at the commencement of the project with a request to use a mortar which could be cleaned in this manner. 20. Furthermore it was apparent early in the cleaning that damage was occurring yet the process was not altered. 21. The applicant has the onus of proving that the respondent has failed to carry out the building work in a proper manner and on the evidence presented to me I am unable to find that. The immediate damage was caused by the cleaning process and I am not persuaded that the respondent's actions made this damage inevitable.

The history of the appeal 1. On 23 September 2022, M and PG Projects as the appellant commenced proceedings 2022/00286866 against Mr Groombridge as the respondent by filing a notice of appeal (the notice of appeal) in which it: 1. stated the Tribunal Decision was received on 26 August 2022; 2. challenged the Tribunal Decision; 3. set out the following two grounds on which it is seeking leave to appeal: GROUND 1 The decision to dismiss the application was not fair or equitable for the following reasons: 1. The appellant has suffered a substantial miscarriage of justice as the decision to dismiss the application was not fair or equitable for the following reasons. 2. The appellant has suffered a substantial miscarriage of justice because the decision was against the weight of evidence. 3. Point 10 of the notice of order, the respondent has produced part of the Brick Technical manual, (brickworks building products), which notes that precautions must be taken if high pressure water jet cleaning is undertaken. It warns if mortar joints, or bricks are being damaged the pressure is too high or the water jet is too close to the wall. The manual also says high pressure cleaning is not recommended for dry pressed bricks. The bricks in this situation are dry pressed. 4. However, on page 34 of the Brick technical manual it states Hand cleaning is appropriate for small jobs, considering this was a two-storey house, I believe the task is not small. 5. Precautions were taken when the brick cleaner started the cleaning. However, the fact that the mortar stains and dags could not be cleaned successfully with a neutraliser solution and high-pressure cleaner since a stronger mortar mix was used then what is prescribed by the NCC and AS3 700 -2018, means you would never be able to clean the mortar off the bricks by hand. 6. I would also like to make note on point 20 of the notice of order, you cannot see the condition of the mortar joints till the brickwork is cleaned, meaning we would not be able to inform Northern beaches Bricklayer of the defective work until the brickwork was cleaned. 7. There seems to be a disregard to follow the NCC and AS3700 -20) 8 (the tribunal made reference to A53700-2001 which is not current). 8. In both the NCC table 3.3.5.4 and AS3700 -201 8 table 5.1 both show M3 mortar mix to be used for general purpose the only areas that stipulate the use of M4 are the following: - Aggressive soils below DPC or in contact with the ground - Industrial exposure - Severe marine exposure The house is in Neutral Bay over 1 km from Sydney Harbour, it does not fit into any of the categories listed above. 9. I would also like to point Out page 30 of the guidelines to standards and tolerances 201 7 page 30, note 3.8 Mortar for masonry, Mortar is defective if it is not in accordance with the requirements of the building code of Australia or the contract specifications, as stated above the NCC and AS3 700 -2018 both state in to use M3 mortar for general purpose use. It seems unjust to accept that the bricklayer can choose a different mortar mix, even though it clearly defines the mortar to use in the NCC and AS3 700 -2018 GROUND 2 It seems there has be no consideration given to the weight of evidence: 1. The applicant M and PG Projects had an independent expert `witness come to site to inspect the work and the report was produced based off the expert's knowledge and inspection of the defective work. 2. All of the photos in the expert's reports show poor workmanship from the bricklayer repointing, not damage from high pressure cleaning which is stated as the main source of damage in the notice of order. 3. I would also like to make note the respondent did not attend site after the hearing date was given, nor did any consultant for the respondent, the respondent produced his own evidence based off material the respondent found on the Internet and social media. 4. The respondent has based his argument that M4 is the right mix for general purpose without checking the NCC, AS3 700 -201 8 or having an independent expert come to site to verify whether the mortar mix is incorrect. It seems unjust or unreasonable that the tribunal have taken the evidence of the respondent as equally as an independent expert witness that attended site to compile a defect report. 1. ticked the box "No" adjacent to the question "Are you asking for leave?". 1. On 13 October 2022, Mr Groombridge filed his reply to appeal (the reply to appeal), in which: 1. he supported the Tribunal Decision for the reasons given by the Tribunal and additional reasons; 2. stated that he did not accept that the appeal was lodged within time and objected to the Tribunal extending the time for the lodging of the appeal; 3. sought an order for costs for the following reasons: I have already missed several days of work to attend hearings with this dispute, I have spent numerous hours preparing paperwork, I've tried to keep the cost at a Minimum (but as they say time is money) I am currently contracting on an hourly rate of $85 per hour + GST / to attend the appeal and other virtual hearings I need to be at home with my computer and Wi Fi / because of this I miss out on 8 hours of pay each time. 1. On 4 November 2022, M and PG Projects filed a bundle of documents (the M and PG Projects appeal documents) comprising: 1. the M and PG Projects CCD documents; 2. Table 5.1 headed "Durability Requirements" of AS 3700:2018 (the AS 3700:2018 extract); 3. Guide to Standards and Tolerances 2017, page 30 (the 2017 Guide extract); 4. the Robs Repointing Quotation; 5. a document entitled "Appellants grounds of appeal". 1. On 15 November 2022, Mr Groombridge filed a bundle of documents (the Groombridge appeal documents) comprising the Groombridge CCD documents with some updated information.

The hearing of the appeal 1. On 12 December 2022, we heard the appeal by telephone. Mr Gillespie represented M and PG Projects. Mr Groombridge represented himself. 2. At the commencement of the hearing Mr Gillespie confirmed that the two appeal grounds in substance were that the Tribunal Decision was against the weight of evidence 3. Mr Gillespie relied on the M and PG Projects documents other than the documents at [13(4)] and [13(5)] above, and made oral submissions. He submitted that the opinions of Mr Nakhla in the SNJ Report which was based on an inspection of the property should have been accepted in preference to the opinions of Mr Mouatt and that the photographs in the SNJ Report established the repointing work was defective. He opposed Mr Groombridge's application for costs. 4. Mr Groombridge relied on the Groombridge documents except for the updated information and made oral submissions. He relied on the reply to appeal in support of his application for costs. 5. At the conclusion of the hearing, we reserved our decision.

The scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable (cl 12(1)(a)); or 2. the decision of the Tribunal under appeal was against the weight of evidence (cl 12(1)(b)); or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with) (cl 12(1)(c)). 1. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. (emphasis in original) 1. In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that: 1. if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 of the NCAT Act; 2. the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach. 1. The test of whether evidence is reasonably available for the purpose of cl 12(1)(c) of Sch 4 of the NCAT Act is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]. 2. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. 3. In Collins, the Appeal Panel at [84] summarised the general principles which govern the granting of leave to appeal: [84] The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there. 1. An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances specified in s 80(2)(b) of the NCAT Act: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. 2. Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) relevantly provides that in the case of an appeal from a decision of the Tribunal an internal appeal must be lodged within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision. 3. In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), the Appeal Panel at [13] stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the appeal in s 36(1) of the NCAT Act, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal.

The issues 1. We accept the statement in the notice of appeal that the Tribunal Decision was received by M and PG Projects on 26 August 2022. In these circumstances we are satisfied that the appeal was commenced within the time of 28 days prescribed under r 25(4)(c) of the NCAT Rules. 2. Having regard to the principles set out in Cominos at [13], the following issues arise for consideration and determination in this appeal: 1. whether leave to appeal should be granted to M and PG Projects and if so the appeal should be allowed; 2. whether the costs of the appeal should be awarded in favour of Mr Groombridge.

Whether leave to appeal should be granted to M and PG Projects and if so the appeal should be allowed 1. We are not satisfied that M and PG Projects has established that the Tribunal Decision was against the weight of evidence within cl 12(1)(b) of Sch 4 of the NCAT Act for the following reasons: 1. Mr Nakhla in the SNJ Report at [5.1.6] was mistaken that Mr Groombridge had used a mortar mix of 1:1:4 because the evidence was that no lime was used; 2. the evidence of Mr Nakhla in the SNJ Report in its totality does not preponderate so strongly against the conclusion found by the Tribunal that it can be said that the conclusion was not one that a reasonable Tribunal member could reach. In particular, Mr Nakhla did not establish that the mortar mix of 1:1:6 for general purpose in Table 3.3.5.2 of the National Construction Code is mandatory. It is significant that the heading of this table is "Acceptable mortar mixes". Further, he did not refer to the standards in AS 3700 or AS 4773. The opinions of Mr Mouatt in the Mouatt emails that "the Australian Standards sets minimum mortar class but it is always possible to use a higher class mortar" was uncontradicted. The opinions of Messrs Nakhla and Mouatt did not depend on an inspection of the property but required an understanding of the applicable construction standards; 3. the photographs in the SNJ Report without captions containing a description of what is depicted do not establish that the repointing work was defective rather than an inappropriate method of acid cleaning having been used. 1. We are not satisfied that M and PG Projects has established that the AS 3700:2018 extract and the 2017 Guide extract are significant new evidence which has arisen and were not reasonably available at the time the proceedings were heard within cl 12(1)(c) of Sch 4 of the NCAT Act because they are extracts of editions of documents which had been published before the hearing. It follows that the grounds of appeal of M and PG Projects to the extent that they are based on the AS 3700:2018 extract and the 2017 Guide extract cannot be established. 2. As none of the criteria in cl 12(1) of Sch 4 of the NCAT Act has been satisfied, we are not satisfied that M and PG Projects may have suffered a substantial miscarriage of justice. It follows that leave to appeal against the Tribunal decision should be refused. 3. Even if we had been satisfied that M and PG Projects may have suffered a substantial miscarriage of justice, then having regard to the matters in Collins at [84(2)], we would not have exercised the discretion under cl 12(1) of Sch 4 of the NCAT Act to grant leave to appeal against the Tribunal Decision.

Whether the costs of the appeal should be awarded in favour of Mr Groombridge

Introduction 1. Before considering the costs of the appeal it is convenient to set out the applicable statutory provisions and legal principles.

The applicable statutory provisions

NCAT Act 1. Section 60(1), (2) and (5)(b) of the NCAT Act relevantly provide that each party to an appeal is to pay the party's own costs and the Tribunal may award costs in relation to an appeal only if it is satisfied that there are special circumstances warranting an award of costs. 2. In proceedings commenced in the Consumer and Commercial Division, by reason of the operation of s 35 when read with par (a) of the definition of "procedural rules" and the definition of "Tribunal rules" in s 4(1) of the NCAT Act, s 60 is subject to the NCAT Rules.

NCAT Rules 1. Rule 38 of the NCAT Rules relevantly provides: 38 Costs in Consumer and Commercial Division of the Tribunal (1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if— … (b) the amount claimed or in dispute in the proceedings is more than $30,000. 1. Rule 38A of the NCAT Rules relevantly provides: 38A Costs in internal appeals (1) This rule applies to an internal appeal lodged on or after 1 January 2016 if the provisions that applied to the determination of costs in the proceedings of the Tribunal at first instance (the first instance costs provisions) differed from those set out in section 60 of the Act because of the operation of— … (c) the procedural rules. (2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal.

The applicable legal principles 1. For the purpose of r 38A of the NCAT Rules the amount claimed or in dispute is the amount in dispute on appeal, not the amount in dispute in the proceedings at first instance: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [57]. 2. Paragraph 10b) of the NCAT Consumer and Commercial Division Guideline – Costs relevantly provides that a party cannot ask for an order for costs for their own time spent in preparing or running the case, or lost earnings in the case of a self-represented party.

Consideration 1. As the amount in dispute in the appeal does not exceed $30,000 r 38A of the NCAT Rules does not apply to the appeal. 2. We are not satisfied that we should make an order that M and PG Projects pay Mr Groombridge's costs of the appeal because he has no entitlement to recover costs for his lost earnings. It is unnecessary to consider whether there are special circumstances warranting an award of costs in favour of Mr Groombridge within s 60(2) of the NCAT Act. 3. It follows that Mr Groombridge's application for the costs of the appeal should be dismissed and that pursuant to s 60(1) of the NCAT Act each of M and PG Projects and Mr Groombridge is to pay their own costs of the appeal.

Orders 1. We make the following orders: 1. leave to appeal is refused; 2. the application of the respondent that the appellant pays the costs of the appeal is dismissed.

********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 December 2022