Georges v Ozz Projects (Aust) Pty Ltd - [2021] NSWCATCD 104

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Georges v Ozz Projects (Aust) Pty Ltd [2021] NSWCATCD 104
Hearing dates: 3 March 2021
Date of orders: 23 July 2021
Decision date: 01 October 2021
Jurisdiction: Consumer and Commercial Division
Before: N Vrabac, Senior Member
Decision:
1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 NSW, the Tribunal dispenses with a hearing, the issues the subject of the application may be determined on the basis of the papers lodged with the Tribunal by the parties in accordance with the Tribunal's orders and directions.
2. The respondent Ozz Projects (AUST) Pty Ltd is to pay 60% of the applicant's costs of an as agreed or assessed.
3. The respondent’s application for costs is dismissed.

Catchwords:
COSTS - Civil and Administrative Tribunal Act 2013 (NSW)

Legislation Cited:
Nil

Cases Cited:
Bostik Australia Pty Ltd v Liddiard (NO 2) [2009] NSWCA 304
Thompson v Chapman [2016] NSWCATAP 6
Owners Corporation Strata Plan 70762 v L & C Platt Constructions Pty Ltd [2014] NSWCATCD 8

Texts Cited:
Nil

Category: Costs
Parties: Peter Georges (Applicant)
Ozz Projects (AUST) Pty Ltd (Respondent)
Representation:
Counsel:
M Marshall (Applicant)
Solicitors:
Finn Roache Lawyers (Applicant)
Celtic Legal (Respondent)

File Number(s): HB 20/37272
Publication restriction: Nil

REASONS FOR DECISION

Background

The background to the proceedings from which this cost application arises was set out in some detail in the decision of the Tribunal made on 23 July 2021. A brief summary appears below to give context to the costs application.
On or about 5 June 2018 the applicant (“Owner”) and the respondent (“Builder’) entered into written agreement for the provision of building and renovations work to be supplied by the Builder to the Owner.
The agreement was in the sum of $155,000.00.
On or about 7 January 2019, the Builder notified the Owner that he was unable to complete the building works. The Builder was last on the building site on 4 March 2019.
The Builder stated the building works were completed pursuant to the contract, accept for the second mid-landing. The Builder contracted to build an inclinator and landings from the Owner’s house, down the hill, to his boat house near the water.
A dispute arose as to whether the Builder should have built the second mid-landing.
On 27 August 2020 the Owner commenced proceedings in this matter.
The Owners’s claim for damages against the Builder was particularised as follows:

$38,445.00 for failure to complete the second mid-landing;
$3,000 additional scaffolding costs, and
$43,000.86 in liquidated damages pursuant to the agreement.

The Builder filed a cross claim, HB 20/19203, which has not been determined to date. The Builder’s claim against the Owner was initially a debt recovery in the Local Court in the sum of approximately $17,000.00. The Local Court proceedings were transferred to NCAT. The Builders claim was amended at NCAT as follows:

$14,123.24 unpaid monies under contract
$2,943.60 unpaid invoice, and
$119,340.43 delay payment, loss to be proven under contract

On 13…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Georges v Ozz Projects (Aust) Pty Ltd

Details

AGLC: Georges v Ozz Projects (Aust) Pty Ltd [2021] NSWCATCD 104
Case: [2021] NSWCATCD 104
Decision Date: 01 October 2021

CaseChat Overview and Summary

The matter before the Civil and Administrative Tribunal was a dispute between Georges and Ozz Projects (Aust) Pty Ltd. The applicant, Georges, sought costs from the respondent, Ozz Projects (Aust) Pty Ltd, pursuant to section 50 of the Civil and Administrative Tribunal Act 2013 (NSW). The central issue before the Tribunal was whether the respondent should bear a portion of the applicant's costs and whether the respondent's application for costs should be dismissed.

In addressing the matter, the Tribunal first considered the statutory provision under which costs may be awarded. The Tribunal noted that section 50 of the Civil and Administrative Tribunal Act 2013 (NSW) allows for the award of costs when a party has unreasonably protracted the proceedings. The Tribunal examined the papers submitted by both parties and concluded that the respondent had indeed unreasonably protracted the proceedings. Consequently, the Tribunal determined that the respondent should pay 60% of the applicant's costs. The Tribunal also dismissed the respondent’s application for costs, finding it to be without merit.

The Tribunal’s decision was made without the necessity for a hearing, as permitted by section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). The Tribunal directed that the issues could be resolved on the basis of the written submissions and evidence provided by the parties. The final orders included a directive for the respondent to pay 60% of the applicant’s costs and a dismissal of the respondent’s application for costs.

Orders

Orders of the court

1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 NSW, the Tribunal dispenses with a hearing, the issues the subject of the application may be determined on the basis of the papers lodged with the Tribunal by the parties in accordance with the Tribunal's orders and directions.

2. The respondent Ozz Projects (AUST) Pty Ltd is to pay 60% of the applicant's costs of an as agreed or assessed.

3. The respondent’s application for costs is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Georges v Ozz Projects (Aust) Pty Ltd [2021] NSWCATCD 104
Hearing dates:	3 March 2021
Date of orders:	23 July 2021
Decision date:	01 October 2021
Jurisdiction:	Consumer and Commercial Division
Before:	N Vrabac, Senior Member
Decision:	1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 NSW, the Tribunal dispenses with a hearing, the issues the subject of the application may be determined on the basis of the papers lodged with the Tribunal by the parties in accordance with the Tribunal's orders and directions. 2. The respondent Ozz Projects (AUST) Pty Ltd is to pay 60% of the applicant's costs of an as agreed or assessed. 3. The respondent’s application for costs is dismissed.
Catchwords:	COSTS - Civil and Administrative Tribunal Act 2013 (NSW)
Legislation Cited:	Nil
Cases Cited:	Bostik Australia Pty Ltd v Liddiard (NO 2) [2009] NSWCA 304 Thompson v Chapman [2016] NSWCATAP 6 Owners Corporation Strata Plan 70762 v L & C Platt Constructions Pty Ltd [2014] NSWCATCD 8
Texts Cited:	Nil
Category:	Costs
Parties:	Peter Georges (Applicant) Ozz Projects (AUST) Pty Ltd (Respondent)
Representation:	Counsel: M Marshall (Applicant) Solicitors: Finn Roache Lawyers (Applicant) Celtic Legal (Respondent)
File Number(s):	HB 20/37272
Publication restriction:	Nil