Grantham & Precise Construction (NSW) Pty Ltd v One Water Naturally Pty Ltd

[2021] NSWCATCD 19

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Grantham & Precise Construction (NSW) Pty Ltd v One Water Naturally Pty Ltd [2021] NSWCATCD 19

Date of orders:

19 May 2021

Decision date:

13 May 2021

Jurisdiction:

Consumer and Commercial Division

Before:

P Moran, Senior Member

Decision:

The application of the respondent for costs is dismissed.

Catchwords:

COSTS - whether special circumstances exist 

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Fair Trading Act 1987 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Costs

Parties:

Murray Robert Grantham (First Applicant/First Costs Respondent)
Precise Construction (NSW) Pty Limited (Second Applicant/Second Costs Respondent)
One Water Naturally Pty Limited (Respondent/Costs Applicant)

File Number(s):

GEN20/27113

Publication restriction:

Nil

REASONS FOR DECISION

Background and Costs Application

1. The Application in the substantive proceedings of Murray Robert Grantham (Mr Grantham) and Precise Constructions (NSW) Pty Limited (Precise) against One Water Naturally Pty Limited (One Water) was dismissed published in Reasons for Decision dated 18 January 2021 (January 2021 Decision).

2. Following publication of the January 2021 Decision the respondent, One Water, emailed the Tribunal and made an application for costs of the Tribunal proceedings (Costs Application). Included in the email were two documents, one headed "Costs Application. Submissions as to Costs Claimed" being 12 pages in length, the other headed "Cost Application. Respondent Submissions as to Costs Claimed" being 14 pages in length. I proceed on the basis of the 14 page document (Costs Submissions).

3. Following lodgement of the Costs Application by One Water the Tribunal wrote to Mr Grantham and Precise, being the parties against whom One Water sought costs, advising of the Costs Application, and providing a copy of the One Water 11 March email and its attachments including the Costs Submissions. The Tribunal directed that any submissions of Mr Grantham or Precise in reply to the Costs Submissions were to be lodged with the Tribunal and given to One Water within 14 days. The email further stated that, thereafter, the Tribunal would make a determination in relation to the Costs Application.

4. No submissions have been lodged with the Tribunal in reply by Mr Grantham or Precise.

Jurisdiction

5. Section 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) relevantly provides by sub-section (1) that each party to proceedings in the Tribunal is to pay that parties own costs. By sub-section (2) however, the Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. Sub-section (3) provides that in determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the matters set out in (a) - (g) of the sub-section. Relevantly for the present application those matters include:

(a)    whether a party has conducted the proceedings in a way that    unnecessarily disadvantaged another party to the proceedings,

(b)    whether a party has been responsible for prolonging unreasonably the    time taken to complete the proceedings,

(c)    the relative strengths of the claims made by each of the parties,    including whether a party has made a claim that has no tenable basis    in fact or law,

(d)    the nature and complexity of the proceedings,

(e)    whether the proceedings were frivolous or vexatious or otherwise    misconceived or lacking in substance,

(f)    whether a party has refused or failed to comply with the duty imposed    by section 36(3) of the CAT Act.

6. Rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW (Rules) applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division, as the substantive proceedings were. Sub-rule (2) of Rule 38 provides:

"Despite section 60 of the Act , the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if—

(a)    the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under Clause 10(2) of Schedule 4 to the Act in relation to the proceedings, or

(b)    the amount claimed or in dispute in the proceedings is more than $30,000."

Does Rule 38 apply?

7. The amount claimed in the substantive proceedings was, initially, $13,082.81 in the Application lodged on 23 June 2020. At the hearing of the Application on 21 October 2020 the quantum of the applicant's claim was amended to $15,141.52. The amount claimed was more than $10,000 but not more than $30,000 however, sub-rule (2)(b) does not, I find, apply as the Tribunal has not made an order under Clause 10(2) of Schedule 4 to the CAT Act in relation to the proceedings.

8. Clause 10(2) of Schedule 4 provides that if an applicant is conducting proceedings in such a way that unreasonably disadvantages the other party in the proceedings by any conduct (including by failure to comply with an order or direction of the Tribunal) the Tribunal may order that the proceedings (or part of the proceedings) be dismissed or struck out.

9. No order under Clause 10(2) of Schedule 4 has been made.

10. Accordingly, Rule 38 does not apply to the present Costs Application.

One Water Submissions

11. One Water outlines the quantum of this claim for costs at [2] of its Costs Submissions. The amounts claimed include a number of tax invoices of JayCar, what are described as "staff costs", 2 tax invoices of One Water for $1,089 and $3,910.50 respectively, an amount of $1,012 for "Murphy Expert Witness Report", and two amounts of $770 and $550 for "Northern Beaches Construction Lawyers". The total amount claimed comes to $9,650.08.

12. At [3] to [12] the Costs Submissions make various assertions about the conduct of Mr Grantham and Precise including of those parties:

1. making consistently false and misleading claims;

2. attempting to obtain financial benefit by deception;

3. engaging in technical conduct in circumvention of normal processes;

4. not settling the substantive proceedings despite being given 5 "direct opportunities" to settle;

5. engaging in dishonest conduct;

6. being - with a Ms Rosina Grantham - abusive to One Water and making a police complaint about trespass;

7. Not lodging an appeal following publication of the January 2021 Reasons.

13. At [12] One Water contends that under s60(2) of the CAT Act special circumstances exist. It then outlines and particularises such circumstances as including :

1. total repudiation of the Application in the substantive proceedings;

2. deliberate misleading of One Water and the Tribunal by giving knowingly false evidence causing disadvantage to it and prolonging the proceedings unnecessarily;

3. Mr Grantham claiming in the original Application to have been a purchaser of the One Water product to obtain financial benefit through the processes of Fair Trading and the Tribunal;

4. One Water being subjected to "retribution conduct", and Mr Grantham and Precise maliciously damaging the premises of One Water;

14. The various factors outlined in (a) to (f) of sub-section (3) of s60 are then the subject of separate submissions.

15. Although all of the Costs Submissions have been considered, only so much of the contentions of One Water as a considered directly relevant to a determination of the Application are referred to in these Reasons. The Submissions include:

1. Mr Grantham and Precise had unnecessarily disadvantaged One Water by claiming matters the subject of the underlying Application with intentionally false and misleading evidence. The Submission does not particularise what evidence One Water contends was either false or misleading.

2. Unreasonably prolonging the proceedings knowing that they were relying upon dishonest evidence; further, demonstrated by Mr Grantham and Precise not "doing or contributing" any of the work required to rectify what is described as "the faulty installation" of the equipment the subject of the substantive Application, or returning the allegedly faulty goods to the place of purchase.

3. One Water's defence of the "false claims" was detailed and corroborated.

4. The substantive Application as submitted was vexatious; Mr Grantham and Precise "… having collaborated with Fair Trading knowing that the Application was misrepresentative and without justification."

5. The allegations in the substantive proceedings were unsupported by expert evidence.

6. The applicants in the substantive proceedings had not proven a defect in the goods.

Consideration and findings

16. The Costs Application is dismissed.

17. The primary intentions in the Costs Submissions of dishonesty, the making of false or misleading claims, attempting to obtain financial benefit by deception, intentional conduct circumventing normalised processes and dishonest conduct are unsupported by evidence.

18. In reaching the determination that it did in the Substantive Proceedings the Tribunal relied on the facts as presented by each of the parties. It determined that, firstly, Mr Grantham was not a person to whom One Water as supplier had supplied the relevant goods. His claim did not satisfy the requirements of Part 6A of the Fair Trading Act (NSW) and was therefore dismissed.

19. The reasons for dismissal of the claim of Precise were recorded in [56] to [66] of the January 2021 Decision.

20. The applicant's in the substantive proceedings, Mr Grantham and Precise, failed to discharge their onus of establishing the requirements of Part 6A of the Fair Trading Act; in particular that the goods supplied by One Water were defective in the matter alleged. The evidence in the substantive proceedings was carefully considered prior to reaching those findings.

21. There is no evidence in support of the Costs Application made by One Water. I am not persuaded, the onus of proof being upon One Water on its application for costs, that:

1. Mr Grantham or Precise conducted the substantive proceedings in a way that unnecessarily disadvantaged One Water;

2. that either Mr Grantham or Precise were responsible for prolonging unreasonably the time taken to complete the proceedings;

3. that the relevant strengths of the claims made by each of the parties in the substantive proceedings were such as to consider that special circumstances existed warranting an award of costs;

4. that the nature or complexity of the proceedings were such as to find special circumstances existing;

5. that the proceedings bought by Mr Grantham and Precise were frivolous, vexatious or otherwise misconceived or lacking in substance; and

6. that either Mr Grantham or Precise have refused or failed to comply with his or its duty imposed by s36(3) of the CAT Act, being the duty to cooperate with the Tribunal to give effect to the guiding principal for the Act and in its application to the proceedings in the Tribunal, namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

order

1. The Application by One Water for costs is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 04 August 2021