Gilliland v Kingdom Building Pty Ltd

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Gilliland v Kingdom Building Pty Ltd [2023] NSWCATCD 87

Hearing dates:

On the papers

Date of orders:

22 August 2023

Decision date:

22 August 2023

Jurisdiction:

Consumer and Commercial Division

Before:

D Ziegler, Senior Member

Decision:

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

(2) The parties’ respective costs applications are dismissed.

(3) Each party is to bear its own costs.

Catchwords:

COSTS – where proceedings not determined on the merits.

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules (NSW) 2014

Home Building Act 1989 (NSW)

Cases Cited:

Bright Build Pty Limited v The Owners – Strata Plan No 94514 [2021] NSWCATAP 163

Hoare v Taylormade Residential Pty Ltd [2022] NSWSC 1359

Nichols v NFS Agribusiness Pty Ltd [2018] 97 NSWLR 691; [2018] NSWCA 84

Re Minister for Immigration and Ethnic Affairs: Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

Taylormade Residential Pty Ltd v Hoare [2021] NSWCATAP 182

Category:

Costs

Parties:

Jodie Gilliland (Applicant)
Kingdom Building Pty Ltd (Respondent)

Representation:

Counsel:

F Clarke (Applicant)
T Davie (Respondent)

Solicitors:

Bartier Perry (Applicant)
Williamson Lawyers (Respondent)

File Number(s):

HB 22/54646

Publication restriction:

Nil

REASONS FOR DECISION

1. These reasons for decision relate to the costs of proceedings which have settled.

2. The applicant (the homeowner) seeks an order that the respondent (the builder) pay the applicant’s costs of the proceedings as agreed or assessed.

3. The builder says that there should be no order for costs for the period up to 19 April 2023, and that for the period thereafter the homeowner should pay the builder’s costs.

4. For the reasons that follow I have decided to dismiss the parties’ respective applications for costs and to make an order that each party pay their own costs.

Background

5. The dispute was a residential building dispute involving renovation works carried out by the builder at the homeowner’s premises in 2021.

6. On or about 17 December 2020 the parties entered into a “residential major works contract” for demolition and construction works at the premises and a “residential major works contract for the construction of a granny flat at the premises (together, the “Contracts”).

7. The Tribunal proceedings were lodged by the applicant on 9 December 2022, and a final hearing occurred on 24 June 2023.

8. The applicant alleged that the respondent had breached the statutory warranties contained in s 18B of the Home Building Act 1989 (NSW) (the “HB Act”), and the Contracts.

9. Initially the applicant sought a money order. However, at the hearing on 13 June 2023 the applicant’s counsel confirmed that the applicant sought a work order, plus costs. There were ten allegedly defective items specified in the joint scott schedule relied on by the parties (the scott schedule).

10. At the end of the hearing the parties informed me that they were confident of being able to resolve the dispute…