Symes v Mick Fabar Constructions Pty Ltd (No 2)

1. [1]

   This costs judgment arises out of a building construction dispute between Robert Symes and Kim Louise Filmer, respectively the first and second plaintiffs, and Mick Fabar Constructions Pty Ltd, the defendant.

2. [2]

   Following proceedings in the NSW Civil and Administrative Tribunal (“NCAT”), in which the plaintiffs were successful (with an order for costs made in their favour), the defendant appealed the decision of the member. The defendant’s appeal was dismissed but leave was granted to either party to apply for costs in relation to the appeal: Mick Fabar Constructions Pty Ltd v Robert Symes & Kim Louise Filmer [2015] NSWCATAP 123.

3. [3]

   The application by the plaintiffs for costs was later refused by the Appeal Panel: Mick Fabar Constructions Pty Ltd v Robert Symes & Kim Louise Filmer [2015] NSWCATAP 174.

4. [4]

   The plaintiffs subsequently sought leave to appeal to the Supreme Court, asking for, primarily, an order that the defendant pay the costs of the appeal.

5. [5]

   The matter was heard before me on 11 December 2015. I made the following orders on 16 December 2015,

   1. (1)

      Leave to appeal refused; and

   2. (2)

      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.

6. [6]

   Mick Fabar Constructions Pty Ltd, the defendant to the appellate proceedings before me, now seeks an order for the costs of the plaintiffs’ unsuccessful action in this Court

Determination

1. [7]

   The general rule in regards to costs within the jurisdiction of NCAT is that each party to the proceedings is to pay their own costs: s 60(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”). The NCAT Act and the Civil and Administrative Tribunal Rules 2014 (NSW) provides for some exceptions, for example where there are “special circumstances warranting an award of costs” or where the sum claimed or in dispute is above a certain amount (within the Consumer and Commercial Division of the Tribunal).

2. [8]

   This approach to costs is in accordance with the overall objectives of NCAT. Section 3(d) of the NCAT Act provides that one of the objects of the Act is to “enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible.”

3. [9]

   Section 98(1) of the Civil Procedure Act 2005 (NSW) (“CPA”) provides,

4. [10]

   Rule 42.1 of the Uniform Civil Procedure Rules 2005 (“UCPR”) relevantly provides,

5. [11]

   The combination of s 98 and r 42.1 ensure that this Court has a wide discretion in regards to costs. It is a power that ought to be “liberally construed”: New South Wales v Stanley [2007] NSWCA 330 at [18].

6. [12]

   As noted in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [69], the usual reason for a court to displace the ordinary order as to costs is where the successful party has engaged in some sort of disentitling conduct. However, even where the successful party has not engaged in such conduct, the discretion remains as to whether it is appropriate for the court to depart from the usual order.

7. [13]

   In this instance, neither party has engaged in conduct which could be described as “disentitling”. However, both parties have lodged appeals which were wholly unsuccessful, and failed to overcome the first hurdle of leave to appeal: the defendant before the Appeal Panel and the plaintiff before this Court.

8. [14]

   It is also relevant that the decision of the Appeal Panel in NCAT was that each party was to bear their own costs, in keeping with the overall objectives of NCAT and the relatively low costs for each party in participating in the appeal, in contrast to the claim amount.

9. [15]

   In proceedings of this nature it is desirable, absent some special circumstance, or some malfeasance by a particular party, that costs are borne by the litigants themselves, rather than becoming an issue which, of itself, increases the costs of the litigation.

10. [16]

    Each party to these proceedings should bear their own costs.

    1. (1)

       Each party is to bear their own costs.