Symes v Mick Fabar Constructions Pty Ltd [2015] NSWSC 1922

Symes v Mick Fabar Constructions Pty Ltd [2015] NSWSC 1922

Leave to appeal was refused because the proposed grounds did not demonstrate a reasonably clear injustice, an issue of general public importance, or error warranting leave. The plain meaning of the Civil and Administrative Tribunal Act 2013 supported the Appeal Panel's approach that r 38 did not apply to Appeal Panel costs and that special circumstances under s 60 were required; Sahyoun did not require the same result on different evidence; and the Appeal Panel's conclusion that special circumstances were not shown was open to it.

Jurisdiction
Australia
Judgment Date
16 December 2015
Procedural Posture
Application for Leave to Appeal From a NSW Civil and Administrative Tribunal Appeal Panel Costs Decision / Leave to Appeal
Outcome
Leave to appeal refused.
Legal Topics
['appeal From Ncat' 'leave to Appeal on a Question of Law' 'costs in NCAT Appeal Proceedings' 'special Circumstances Under S 60 of the Civil and Administrative Tribunal Act 2013' 'application of R 38 of the Civil and Administrative Tribunal Rules 2013']
['administrative Law' 'civil Procedure' 'costs' 'consumer and Commercial Tribunal Proceedings'] ['appeal From Ncat' 'leave to Appeal on a Question of Law' 'costs in NCAT Appeal Proceedings' 'special Circumstances Under S 60 of the Civil and Administrative Tribunal Act 2013' 'application of R 38 of the Civil and Administrative Tribunal Rules 2013']

Case Brief

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Procedural Posture

Application for Leave to Appeal From a NSW Civil and Administrative Tribunal Appeal Panel Costs Decision / Leave to Appeal

Legal Issues

  1. 1 ['Whether s 60 of the Civil and Administrative Tribunal Act 2013, properly construed, requires special circumstances to be demonstrated before costs can be awarded on an appeal to the NCAT Appeal Panel.' 'Whether the Appeal Panel erred by not following Sahyoun v Owners Corporation Strata Plan 75123 (No 2) NSWCATAP 70 when refusing costs.' 'Whether the Appeal Panel erred in its application of s 60(3) of the Civil and Administrative Tribunal Act 2013 by taking too restrictive an approach to special circumstances.']

Ratio Decidendi

Leave to appeal was refused because the proposed grounds did not demonstrate a reasonably clear injustice, an issue of general public importance, or error warranting leave. The plain meaning of the Civil and Administrative Tribunal Act 2013 supported the Appeal Panel's approach that r 38 did not apply to Appeal Panel costs and that special circumstances under s 60 were required; Sahyoun did not require the same result on different evidence; and the Appeal Panel's conclusion that special circumstances were not shown was open to it.

Court Disposition

Leave to appeal refused.

Orders

  • ['Leave to appeal is refused.' 'Each party is to bear their own costs unless an application is made to the Court within 14 days for costs, in which case the application will be determined on the papers.']