Kursun v Gareffa (No 2) - [2017] NSWCATCD 23

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Kursun v Gareffa (No 2) [2017] NSWCATCD 23
Hearing dates: On the papers
Decision date: 04 April 2017
Jurisdiction: Consumer and Commercial Division
Before: D G Charles, Senior Member
Decision:
1. No order as to costs with the intent that each party is to bear their own costs of and incidental to the proceedings.

Catchwords: COSTS – application of discretion - Rule 38 of NCAT Rules s 60 of NCAT Act – each party partially successful – effect of respondent’s Calderbank letters – whether assessment of costs should be ordered.
Legislation Cited: Civil and Administrative Tribunal Act 2013
Civil and Administrative Tribunal Rules 2014
Cases Cited: Ruddock v Vardalis (No 2) (2001)115 FCR 229
Calderbank v Calderbank [1975] 3 All ER 333
Seller v Jones [2014] NSWCA 19
Rickard Constructions v Rickard Hails Moretti [2005] NSWSC 481
Elite Protective Personnel v Salmon [2007] NSWCA 322
Jones v Bradley (No 2) [2003] NSWCA 258
Old v McInnes and Hodgkinson [2011] NSWCA 410
Category: Costs
Parties: Vincenza Kursun (applicant)
Paul Gareffa (respondent)
Representation: Counsel:
Timothy Bland (applicant)
Nicholas Allan (respondent)

File Number(s): HB 15/35331
Publication restriction: Unrestricted

reasons for decision

On 17 January 2017 my Orders and Reasons in the proceedings constituted by File No HB 15/35331 were published. I ordered that the respondent builder pay the applicant home owner the sum of $10,781.38 and then made other orders and directions in respect of any submissions as to the costs of the proceedings.
The parties have now exercised their liberty (under orders 2 and 3) to apply for their costs of and incidental to the proceedings.
Both parties provided written submissions in support of their applications for costs pursuant to directions 4 and 5 made on 17 January 2017. The parties confirmed that they consent to the Tribunal determining their applications for costs without an oral hearing; i.e. on the basis of the papers lodged with the Tribunal.
The starting point is that parties to proceedings in the Tribunal are to pay their own costs: see s 60 of the Civil and Administrative Tribunal Act (NSW) 2013 (the NCAT Act). Section 60(2) provides costs are awarded only if the Tribunal is satisfied that there are ‘special circumstances warranting an award of costs’.
However, s 60 is subject to other provisions of the NCAT Act. This includes the Civil and Administrative Tribunal Rules (NSW) 2014 made pursuant to the NCAT Act. Relevantly, Rule 38 states:

“(1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal.
(2) 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)…

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 Kursun v Gareffa (No 2)

Details

AGLC: Kursun v Gareffa (No 2) [2017] NSWCATCD 23
Case: [2017] NSWCATCD 23
Decision Date: 04 April 2017

CaseChat Overview and Summary

The case of Kursun v Gareffa (No 2) involves an application for costs between the parties, following a dispute resolved by the New South Wales Civil and Administrative Tribunal (NCAT). The central issue was the application of discretion in determining costs under Rule 38 of the NCAT Rules and section 60 of the NCAT Act, given that each party had achieved partial success. A further consideration was the effect of the respondent's Calderbank letters, which proposed a settlement offer that was not accepted, and whether this should influence the assessment of costs.

The court examined the principles guiding the exercise of discretion in awarding costs, particularly in cases where each party has achieved some measure of success. The Calderbank letters were reviewed to assess whether they warranted a departure from the usual approach to costs, considering the impact of such offers on the proceedings. The court recognised that the Calderbank offer, while not accepted, might still influence the assessment of costs due to its timing and content. Ultimately, the court determined that the most equitable outcome was for each party to bear their own costs, reflecting the partial success achieved by both parties.

In reaching this decision, the court balanced the need for a just and equitable outcome against the principle of each party bearing their own costs. The court concluded that a costs order favouring one party over the other would not be appropriate, given the circumstances of partial success and the presence of Calderbank letters. The decision underscores the importance of discretion in cost orders, particularly in complex cases with multiple outcomes.

No specific orders as to costs were made, with the intent that each party is to bear their own costs of and incidental to the proceedings. This decision highlights the careful consideration required in cost orders, particularly in cases involving partial success and settlement offers.

Orders

Orders of the court

1. No order as to costs with the intent that each party is to bear their own costs of and incidental to the proceedings.

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:	Kursun v Gareffa (No 2) [2017] NSWCATCD 23
Hearing dates:	On the papers
Decision date:	04 April 2017
Jurisdiction:	Consumer and Commercial Division
Before:	D G Charles, Senior Member
Decision:	1. No order as to costs with the intent that each party is to bear their own costs of and incidental to the proceedings.
Catchwords:	COSTS – application of discretion - Rule 38 of NCAT Rules s 60 of NCAT Act – each party partially successful – effect of respondent’s Calderbank letters – whether assessment of costs should be ordered.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014
Cases Cited:	Ruddock v Vardalis (No 2) (2001)115 FCR 229 Calderbank v Calderbank [1975] 3 All ER 333 Seller v Jones [2014] NSWCA 19 Rickard Constructions v Rickard Hails Moretti [2005] NSWSC 481 Elite Protective Personnel v Salmon [2007] NSWCA 322 Jones v Bradley (No 2) [2003] NSWCA 258 Old v McInnes and Hodgkinson [2011] NSWCA 410
Category:	Costs
Parties:	Vincenza Kursun (applicant) Paul Gareffa (respondent)
Representation:	Counsel: Timothy Bland (applicant) Nicholas Allan (respondent)
File Number(s):	HB 15/35331
Publication restriction:	Unrestricted