Symes v Mick Fabar Constructions Pty Ltd (No 2)

The case of Symes v Mick Fabar Constructions Pty Ltd (No 2) involved a dispute regarding costs between the parties, which was heard by the New South Wales Civil and Administrative Tribunal (NCAT). The respondent, Mick Fabar Constructions Pty Ltd, sought an order for costs pursuant to rule 42.1 of the Uniform Civil Procedure Rules 1999 (NSW). The applicant, Symes, opposed the costs application, arguing that each party should bear their own costs.

The legal issue before the court was whether the NCAT has the authority to order that each party bear their own costs. The court considered the relevant statutory provisions, including sections 98 of the Civil Procedure Act 2005 (NSW) and section 60 of the NCAT Act 2009 (NSW), which outline the objectives of the NCAT and its powers. The court also examined the principles of costs in equity and fairness, as well as the authority of the NCAT to order costs as it deemed fit.

In its decision, the court found that the NCAT has the discretion to order that each party bear their own costs, provided it is consistent with the objectives of the NCAT and the principles of fairness. The court emphasised that the NCAT is not bound by the common law rules of costs and can exercise its discretion in accordance with the statutory framework. The court held that in this case, it was appropriate to order that each party bear their own costs, given the circumstances of the proceedings and the conduct of the parties.

The final orders of the court were that each party bear their own costs of the proceedings, including the costs of the application for costs.