Schach v Dowdy Constructions Pty Ltd

[2025] NSWCATCD 84

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Schach v Dowdy Constructions Pty Ltd [2025] NSWCATCD 84

Hearing dates:

On the papers

Date of orders:

13 June 2025

Decision date:

13 June 2025

Jurisdiction:

Consumer and Commercial Division

Before:

D Robertson, Principal Member

Decision:

(1)      The respondent pay the applicant’s costs thrown away by reason of the setting aside of the orders made on 19 February 2024, including the costs of and incidental to the hearing on that date, and the costs of and incidental to the respondent’s application to set aside those orders. Such costs to be as agreed or assessed.

(2)      The applicant’s application for costs is otherwise dismissed.

Catchwords:

COSTS – Proceedings resolved by consent orders – Application of Lai Qin principles

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Cases Cited:

BCA Constructions Pty Ltd v Arsovski [2024] NSWCATAP 31

Bulloch v Linden Building Services Pty Ltd t/as Linden Constructions [2019] NSWCATAP 42

Nadilo v Eagleton [2021] NSWCA 232

Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84

Re: Minister for Immigration & Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

Roberts v The Owners - Strata Plan No 4393 [2023] NSWCATAP 119

Category:

Costs

Parties:

Michael Schach (Applicant)
Dowdy Constructions Pty Ltd (Respondent)

Representation:

Solicitors:
WMD Law (Applicant)

File Number(s):

2023/00393568 (formerly HB 23/23743)

Publication restriction:

Nil

REASONS FOR DECISION

1. The applicant commenced these proceedings on 23 May 2023 seeking orders requiring the respondent to make good three identified defects.

2. The parties were given leave for legal representation. The applicant retained solicitors. The respondent was not at any time represented by solicitors before the Tribunal but apparently consulted solicitors “allocated” by the respondent’s indemnity insurers.

3. The proceedings were listed for hearing on 19 February 2024. On that occasion the respondent failed to appear, and the hearing proceeded in its absence. Orders were made against the respondent requiring it to carry out work.

4. The respondent filed an application to set aside the decision of 19 February 2024 on 19 March 2024. In that application Mr Matthew Dowdy, the director of the respondent, stated that the respondent did not receive the correspondence from the Tribunal notifying it of the hearing. The set aside application stated that notice of the hearing was sent to “our solicitors”. It is apparent from other documents on the file that the notice was in fact sent to the respondent’s registered office, which was the respondent’s accountant’s address, but apparently not passed on.

5. On 22 April 2024 the Tribunal made orders setting aside the orders made on 19 February 2024.

6. The proceedings were then listed for hearing before me on 22 August 2024. On that occasion orders were made by consent requiring the respondent to carry out works in accordance with details set out in a joint report of experts prepared for the purposes of the hearing.

7. The orders also required the respondent to pay the applicant…