James Fordham v Dewsash Pty Ltd t/as SP and W Hobson

[2014] NSWCATCD 1

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	James Fordham v Dewsash Pty Ltd t/as SP & W Hobson [2014] NSWCATCD 1
Hearing dates:	Determined on the papers
Decision date:	09 January 2014
Jurisdiction:	Consumer and Commercial Division
Before:	K Rosser, Senior Member
Decision:	1       The respondent /cross-applicant shall pay the applicant /cross-respondent’s costs of the current proceedings, the District Court appeal and the original applications on a party/party basis, as agreed or assessed, by 7 February 2014.
Legislation Cited:	Consumer Trader and Tenancy Tribunal Act 2001 Consumer Trader and Tenancy Tribunal Act 2009 Home Building Act 1989 Civil and Administrative Tribunal Act 2013
Category:	Principal judgment
Parties:	James Fordham (Applicant / cross respondent) SP & W Hobson (Respondent / cross applicant)
File Number(s):	HB 12/43117 and HB 12/43122

reasons for decision

APPLICATION

1. On 20 November 2013 I determined the current proceedings in favour of the applicant/cross-respondent (Mr Fordham) and ordered the respondent /cross-applicant (Dewsash) to pay Mr Fordham the sum of $82,010.05 by 16 December 2013. The current proceedings were before the Tribunal as a consequence of Mr Fordham's substantially successful appeal to the District Court in respect of decisions made by the Tribunal in the original proceedings, HB 09/25483 and HB10/21874. I ordered the parties to file and serve written submissions on costs by 23 December 2013 if they could not reach an agreement. The parties were also ordered to confirm whether they consented to having the question of costs dealt with on the papers.

1. On 20 December 2013 Mr Fordham's solicitor wrote to the Tribunal enclosing a letter dated 19 December 2013 to him from Dewsash's solicitor. That letter states Dewsash's opinion that there are no ground on which Dewsash could oppose an order that costs follow the event and that a costs order in Mr Fordham's favour as agreed or assessed is not opposed.

LAW

1. This matter was determined by the Consumer, Trader and Tenancy Tribunal when the CTTT Act and the CTTT Regulation were in force. The Consumer Trader and Tenancy Tribunal was abolished as of 1 January 2014 and the CTTT Act and Regulation were repealed. As the issue of costs was not determined at the time the substantive issues were decided, the proceedings are incomplete.

1. Transitional provisions in relation to part heard (that is, incomplete proceedings) are set out in Clause 7 of Schedule 1 of the NCAT Act. Pursuant to Clause 7(3), the current Tribunal has and may exercise all the functions that the CTTT had immediately before its abolition, and the provisions of the CTTT Act and Regulation continue to apply to incomplete proceedings.

1. The relevant provisions in relation to costs are accordingly section 53 of the CTTT Act and in Clause 20 of the CTTT Regulation. Clause 20(4) of the Regulation states that in any proceedings in respect of which the amount claimed or in dispute is more than $30,000.00, the Tribunal may award costs "in such circumstances as it thinks fit". The amount claimed in this case exceeds $30,000.00. The Tribunal therefore has a wide discretion in relation to making an order for costs.

1. The purpose of making a costs order is to provide compensation to the party in whose favour the order is made for the expense the party has been put to in prosecuting or defending legal proceedings. In general terms, a party who is successful is entitled to an order for costs in its favour, subject to certain limited exceptions generally involving misconduct on the part of that party. (See, for example, Latoudis vCasey [1990] 170 CLR 534 and Oshlak v Richmond River Council [1998] HCA 11)

FINDINGS AND REASONS

1. Mr Fordham was substantially successful in these proceedings, as he was in the District Court Appeal. There was no misconduct during the proceedings which would preclude him from being awarded costs on the usual basis. I note that Dewsash's solicitor does not oppose the making of an order for costs in Mr Fordham's favour. I am satisfied that the Dewsash should also be ordered to pay Mr Fordham's costs in relation to the original proceedings and to the District Court proceedings, in which the issue of costs was determined to be a matter for the Tribunal to decide.

CONCLUSION

1. In summary, I am satisfied that Mr Fordham has established a basis for an order for costs on a party/party basis. The above order is made accordingly.

ORDER

1. The respondent /cross-applicant shall pay the applicant /cross-respondent's costs of the current proceedings, the District Court appeal and the original applications on a party/party basis, as agreed or assessed, by 7 February 2014.

Kim Rosser

Senior Member

Civil & Administrative Tribunal of New South Wales

9 January 2014

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

Registrar

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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: 07 March 2014