Fish v Kurmond Homes Pty Ltd

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Fish v Kurmond Homes Pty Ltd [2025] NSWCATCD 98

Hearing dates:

On the papers

Date of orders:

21 July 2025

Decision date:

21 July 2025

Jurisdiction:

Consumer and Commercial Division

Before:

Dr K M George, Senior Member

Decision:

(1) A hearing on the issue of costs is dispensed with under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW).

(2)   Kyle Fish is to pay two thirds of the costs incurred by Kurmond Homes Pty Ltd in these proceedings, as agreed or as assessed on the ordinary basis.

(3)   Kurmond Homes Pty Ltd is to pay one third of the costs incurred by Kyle Fish in these proceedings, as agreed or as assessed on the ordinary basis.

Catchwords:

COSTS - Whether discrete and separable issues justifying departure from order that costs follow event - Apportionment of costs

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Cases Cited:

Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304

DSHE Holdings Ltd (Receivers and Managers) (in liq) v Potts (No 2) [2022] NSWCA 258

Hughes v Western Australian Cricket Association (Inc) [1986] ATPR 40-748

Latoudis v Casey [1990] 170 CLR 534

McIntyre v DRW Constructions Pty Ltd; DRW Constructions Pty Ltd v McIntyre [2018] NSWCATCD 58

Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15

Oshlack v Richmond River Council (1998) 193 CLR 72

Texts Cited:

Nil

Category:

Costs

Parties:

Kyle Douglas Fish (applicant)

Kurmond Homes Pty Ltd (respondent)

Representation:

Counsel:
Kurmond Homes Pty Ltd: Mr Kent

Solicitors:
Kurmond Homes Pty Ltd: Leeds Lawyers

Kyle Fish: self-represented applicant

File Number(s):

2023/00369499

Publication restriction:

Nil

REASONS FOR DECISION

1. This is a costs application arising from the substantive proceedings which involved a claim by Mr Fish against Kurmond Homes Pty Ltd for $415,622.00, being the cost of rectifying three alleged defects in a new build:

1. Uneven distribution of the aggregate in the concrete slab;

2. Damage to the surface of the polished concrete slab; and

3. External bricks not installed and cleaned in accordance with manufacturer’s instructions, resulting in mortar smeared across the face.

2. In this decision, Mr Fish is referred to as ’the owner’ and Kurmond Homes Pty Ltd is referred to as ‘the builder’.

3. On 31 January 2025 the Tribunal published its decision in the substantive proceedings, ordering that the builder pay the owner $55,999.19, being the cost of rectifying the damage to the surface of the polished concrete slab. The owner’s application was otherwise dismissed.

4. A related application by the builder against Polycrete Australia Pty Ltd, which is not relevant to this cost application, was dismissed.

5. Pursuant to the procedural directions made in the substantive decision, the parties were accorded the right to make a costs application.

6. The Tribunal directed that both parties provide written submissions and documents relied upon on the issue of costs. The Tribunal also directed that the parties’ submissions address whether or not they sought a…