Teng v FEV Mono Constructions (No 2)

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Teng v FEV Mono Constructions (No 2) [2022] NSWCATCD 36

Hearing dates:

Written submissions 24 December 2021; 11 January 2022; 28 January 2022

Date of orders:

25 March 2022

Decision date:

25 March 2022

Jurisdiction:

Consumer and Commercial Division

Before:

R Notley, Senior Member

Decision:

1. The respondent is to pay the applicant’s costs of these proceedings on the ordinary basis as agreed or assessed.

Catchwords:

COSTS - Civil and Administrative Tribunal Act 2013 (NSW)

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Cases Cited:

Calderbank v Calderbank [1976] Fam Law 93; 3 All ER 333; 3 WLR 586

Carlson v ARA Engine Reconditioning Pty Ltd (No 2) [2020] NSWCATAP 39

Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon (No 2) [2018] NSWCATAP 31

Eager v North Sydney Retirement Trust (No.2) [2019] NSWCATAP 92

Mendonca v Tonna [2017] NSWCATAP 176

Nadilo v Eagleton [2021] NSWCA 232

Re Minister for Immigration and Ethnic Affairs’ Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

Singapore Airlines Cargo Pty Ltd v Principle International Pty Ltd (No 2) [2017] NSWCA 340

Thompson v Chapman [2017] NSWCATAP 64

Texts Cited:

Nil

Category:

Costs

Parties:

Frank Teng (Applicant)
FEV Mono Constructions Pty Ltd (Respondent)

Representation:

Counsel:
S Blackman (Applicant)
F Salama (Respondent)

Solicitors:
Contracts Specialist (Applicant)
Mitchell & Shorten Lawyers (Respondent)

File Number(s):

HB 20/45559

Publication restriction:

None

REASONS FOR DECISION

1. This is a decision on costs arising out of a building claim under Part 3A of the Home Building Act 1989 (NSW).

2. As set out my decision dated 10 December 2021, at the commencement of the hearing on 18 August 2021, the parties informed the Tribunal that:

1. following the parties' experts conclave on 11 August 2021, the experts had prepared a joint report in which the majority of the alleged defects had been agreed in terms of whether an item was a defect or not, the rectification method and the quantum of the rectification method;

2. according to the joint report, the applicant's experts assessed the quantum of the applicant's claim at $103,986.71 and the respondent's experts assessed the quantum of the applicant's claim at $89,148.31;

3. the applicant was prepared to accept the amount of $89,148.31 and that the only issues to be determined by the Tribunal were whether a money order or a work order should be made, bearing in mind section 48MA of the HBA, and the issue of costs, including the costs of an adjournment application by the respondent that was not pressed at the commencement of the hearing; and

4. neither party wished to cross-examine any witnesses.

3. On 18 August 2021, I made orders for the parties to file and serve written submissions on section 48MA and whether the Tribunal should make a work order or a money order and reserved the issue of costs.

4. The parties subsequently filed and served written submissions on section 48MA…