Powered Projects Pty Ltd v Makis - [2021] NSWCATCD 150

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Powered Projects Pty Ltd v Makis [2021] NSWCATCD 150
Hearing dates: On the papers
Date of orders: 16 December 2021
Decision date: 16 December 2021
Jurisdiction: Consumer and Commercial Division
Before: D Charles – Senior Member
Decision:
1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 NSW, the Tribunal dispenses with a hearing on the question of costs.
2. No order as to costs, with the intent that each party is to bear their own costs of the proceedings.
3. The respondents’ application for costs of the proceedings is dismissed.

Catchwords:
COSTS — Transferred from General List to Home Building List - withdrawal by applicant — Respondents’ application for costs refused — No special circumstances

Legislation Cited:
Civil and Administrative Tribunal Act 2013 NSW
Home Building Act 1989 NSW
Civil and Administrative Tribunal Rules 2014 NSW

Cases Cited:
Allen v TriCare (Hastings) Ltd[2017] NSWCATAP 25
Brodyn Pty Ltd v Owners Corporation – Strata Plan 73019 (No. 2) [2016] NSWCATAP 224
Diaspora Holdings Pty Ltd v Owners SP 68608 [2019] NSWCATAP 250
Pines Resort Management Pty Ltd t/as Gateway Lifestyle the Pines v Marsh [2019] NSWCATAP 12
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622

Texts Cited:
Nil

Category: Costs
Parties: Powered Projects Pty Ltd (Applicant)
Sam Makis (First Respondent)
Sams Solar Pty Ltd (Second Respondent)
Representation: Applicant (Self represented)
S Makis (Respondent)

File Number(s): HB 21/34008
Publication restriction: Nil

REASONS FOR DECISION

On 9 August 2021, these proceedings were commenced in the Tribunal as an application filed by Powered Projects Pty Ltd (applicant) against Sam Makis (Mr Makis) and Sams Solar Pty Ltd (respondents). The application was lodged online by Joshua Fleming (Mr Fleming) on behalf of the applicant and was commenced as matter to be dealt with in the Tribunal’s General List; i.e. as a consumer claim against the respondents, in an amount of up to $16,716.65.
The applicant is a company that project manages for its customers installations of solar equipment. It sub-contracts installers to do various jobs for it. The application lodged with the Tribunal stated that the applicant had engaged the respondents via email to perform installations of solar equipment in the respondents’ local area, that the respondents “used our private/privileged client information to cause our clients to cancel their contracts”, and that the respondents “then proceeded to thieve the stock we had arranged for those installations”. The applicant says that the respondents have “refused to respond or return the stock and as such we require the total valued amount (of) $16,716.65 … to be reimbursed”.
On 10 August 2021, the parties were sent a Notice of Hearing informing them that the proceedings constituted by the application had been listed for conciliation and hearing in a virtual hearing room (VHR) on 2 September 2021. The back sheet of the Notice of Hearing contained directions which among other matters required the applicant to…

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.

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Details

Case: [2021] NSWCATCD 150
Decision Date: 16 December 2021

CaseChat Overview and Summary

In the case of Powered Projects Pty Ltd v Makis, the dispute arose between a subcontractor and a homeowner over a construction project in New South Wales. The matter was initially heard in the Civil and Administrative Tribunal (CAT) and subsequently transferred to the Home Building List. The primary issues before the tribunal were whether the applicant, Powered Projects Pty Ltd, was entitled to costs and if so, how they should be assessed, given that they had withdrawn their application.

The tribunal considered whether the withdrawal by Powered Projects constituted special circumstances warranting an order for costs in favour of the respondents. The tribunal examined the principles guiding cost orders in such circumstances and the relevant legislative provisions, specifically section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). The tribunal concluded that there were no special circumstances present to justify an order for costs in favour of the respondents. The tribunal held that the withdrawal did not automatically entitle the respondents to an order for costs and that each party should bear their own costs.

The tribunal dismissed the respondents' application for costs of the proceedings. It was found that there were no special circumstances justifying an order for costs in their favour. The tribunal emphasised that the absence of special circumstances meant that the usual position, where each party bears their own costs, should apply. Accordingly, the tribunal made orders that the respondents' application for costs be dismissed, and each party bear their own 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 on the question of costs.

2. No order as to costs, with the intent that each party is to bear their own costs of the proceedings.

3. The respondents’ application for costs of the proceedings 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:	Powered Projects Pty Ltd v Makis [2021] NSWCATCD 150
Hearing dates:	On the papers
Date of orders:	16 December 2021
Decision date:	16 December 2021
Jurisdiction:	Consumer and Commercial Division
Before:	D Charles – Senior Member
Decision:	1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 NSW, the Tribunal dispenses with a hearing on the question of costs. 2. No order as to costs, with the intent that each party is to bear their own costs of the proceedings. 3. The respondents’ application for costs of the proceedings is dismissed.
Catchwords:	COSTS — Transferred from General List to Home Building List - withdrawal by applicant — Respondents’ application for costs refused — No special circumstances
Legislation Cited:	Civil and Administrative Tribunal Act 2013 NSW Home Building Act 1989 NSW Civil and Administrative Tribunal Rules 2014 NSW
Cases Cited:	Allen v TriCare (Hastings) Ltd[2017] NSWCATAP 25 Brodyn Pty Ltd v Owners Corporation – Strata Plan 73019 (No. 2) [2016] NSWCATAP 224 Diaspora Holdings Pty Ltd v Owners SP 68608 [2019] NSWCATAP 250 Pines Resort Management Pty Ltd t/as Gateway Lifestyle the Pines v Marsh [2019] NSWCATAP 12 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622
Texts Cited:	Nil
Category:	Costs
Parties:	Powered Projects Pty Ltd (Applicant) Sam Makis (First Respondent) Sams Solar Pty Ltd (Second Respondent)
Representation:	Applicant (Self represented) S Makis (Respondent)
File Number(s):	HB 21/34008
Publication restriction:	Nil