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Guiffre v Srinivasan [2017] NSWCATAP 121 (25 May 2017)

Last Updated: 25 May 2017

Case Name:	Guiffre v Srinivasan
Medium Neutral Citation:	[2017] NSWCATAP 121
Hearing Date(s):	8 February 2017
Date of Orders:	25 May 2017
Decision Date:	25 May 2017
Jurisdiction:	Appeal Panel
Before:	R Hamilton SC, Senior Member DAC Robertson, Senior Member
Decision:	1. Leave to appeal refused. 2. Appeal dismissed.
Catchwords:	CONTRACT – Home Building – builder entered contract to complete building work – builder appointed third party project manager with authority to receive payments – third party carried out building work without reference to builder – third party received payments and did not account to builder – work not completed – builder liable for failure to complete work
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW)
Cases Cited:	Allen v Tricare (Hastings) Ltd [2017] NSWCATAP 25 Augustus v Mohammed  [2016] NSWCATAP 108  Bonita v Shen [2016] NSWCATAP 159 Building Insurers Guarantee Corporation v The Owners Strata Plan 60848 [2012] NSWCA 375 The Owners Strata Plan No.61162 v Lipman; The Owners Strata Plan No.61162 v Building Insurers Guarantee Corporation [2014] NSWSC 482 The Owners Strata Plan No.68372 v Allianz Australia Insurance Ltd [2014] NSWSC 1807 Wong v Yousif Enterprises (Aust) Pty Ltd [2016] NSWCATAP 231
Category:	Principal judgment
Parties:	Gaetano Guiffre (Appellant) Devika Srinivasan (Respondent)
Representation:	Counsel: S Ahmed (Appellant) A Labuzin (Respondent)
File Number(s):	AP 16/44856
Decision under appeal:
Court or Tribunal:	NSW Civil and Administrative Tribunal
Jurisdiction:	Consumer and Commercial Division
Date of Decision:	9 September 2016
Before:	P Boyce, Senior Member
File Number(s):	HB 16/05796

REASONS FOR DECISION

1. The appellant (Mr Guiffre) appeals against a decision of the Consumer and Commercial Division of the Tribunal by which he was ordered to pay the respondent (Ms Srinivasan) the sum of $28,771.00, being $27,781.00 by way of damages for incomplete and defective works and $990.00 in respect of the fees paid to an expert who gave evidence at the hearing. The amount of $27,781 was calculated by Ms Srinivasan’s expert, Mr Misry, and that figure is not the subject of appeal. The Tribunal dismissed as too remote a claim by Ms Srinivasan to lost rent in the amount of $8,400. That finding also is not challenged in this appeal.
2. Mr Guiffre is a licensed builder. Ms Srinivasan was the owner of an investment property at Doonside on which she wished to have constructed a small granny flat, that is a small self-contained flat.
3. Although the circumstances leading to Ms Srinivasan’s claim against Mr Guiffre are unusual, the underlying facts were relatively uncontroversial. Ms Srinivasan’s evidence as set out in paragraphs 14-31 of the Tribunal’s decision was as follows:

14. The applicant entered into negotiation with Mason & Mason Pty Ltd trading as Houselogic (“Houselogic”) for the respondent to carry out building works on her land, being a secondary dwelling (granny flat).
15. On 10 January 2015 a representative of Houselogic provided the applicant with a quote to carry out the proposed building work, a scope of works and plans.
16. On 21 January 2015 the applicant and Houselogic signed a document headed “Scope of Works & Acceptance”. The document attempts to exclude it being a contract under the Home Building Act 1989. Its purpose is stated as being to authorise Houselogic to prepare “Floor Plans, Site Plans, Elevations, Sections (if required) Door and Window Plans, Electrical Plan and our Schedule of required Finishes (the “Final Design”). The Scope of Works & Acceptance also gives a price for the proposed works in the amount of $89,000.00.
17. On 22 January 2015 the applicant paid to Houselogic an amount of $8,136.36.
18. Houselogic directed the applicant on 9 March 2015 to lodge a development application using the plans prepared by Houselogic with Blacktown City Council and pay fees to council totalling $6,178.00. The applicant lodged the development application and paid the Council fees.
19. On 26 March 2015 the applicant paid to Houselogic an amount of $1,540.00 for the sewer line peg out of the proposed building works.
20. On 18 May 2015 the applicant signed a contract in the Fair Trading form for the carrying out of home building work exceeding $20,000 at the offices of Houselogic (“Contract”). She initialled each page. The Contract described the builder as Guy Guiffre (the respondent) and the applicant as the owner.
21. The applicant did not see the respondent sign the Contract. Houselogic provided to the applicant copy of the contract signed by the respondent on the attestation page. The contract price was $97,900.00. The Contract page was dated below the respondent’s signature with 21 May 2015.
22. The applicant paid a deposit of $9,790.00 to Houselogic’s bank account by electronic funds transfer. This account is the same account as shown on the Scope of Works & Acceptance. The applicant was issued with a receipt on the respondent’s letterhead.
23. The applicant paid further amounts to the account as shown on the invoices from the respondent:
On 15 May 2015 - $14,895.00
On 22 June 2015 - $24,475.00
On 22 July 2015 - $24,475.00
On 2 September 2015 - $19,580.00
24. On 9 June 2015 Home Building Compensation Fund issued an insurance policy in respect of the building works to be carried out with the respondent nominated as the builder.
25. On 10 June 2015 Blacktown City Council issued the Complying Development Certificate in respect of the proposed building works.
26. The applicant submits that building works were commenced in June 2015. The applicant was not present at the property at any time the works were being undertaken. Her contact throughout the building was with representatives of Houselogic.
27. Before and during the building works she did not see the respondent on site and had not met him at any time.
28. In about November 2015 the applicant became concerned that the building works were not completed and she communicated her concerns to representatives of Houselogic.
29. In email correspondence from Houselogic to the applicant on 26 November 2015 a Notice of Default in accordance with the Contract was served on the respondent by Houselogic on behalf of the applicant.
30. On 13 February 2016 the applicant served on the respondent a Notice of Contract Termination effective at 12 February 2016.
31. On 12 March 2016 the applicant lodged a complaint about the building work with NSW Fair Trading.

4. Mr Guiffre’s evidence as set out in paragraph 42 of the Tribunal Member’s decision was as follows:

(1) On 13 February 2015 he [Mr Guiffre] responded to an email from Kurt Mason of Houselogic offering “Unique opportunity for Licensed Builder within a small to medium sized residential building company. Benefits for the Builder: Labour only (all materials supplied by us)–Consistent Work-High Volume-Low Stress-Full support and assistance provided by the company throughout each project-Flexible with lifestyle (hands on or supervisory) Let us take care of: Sales and Marketing-Accounts-Contracts.”
(2) On 3 and 6 March 2015 the respondent met with Michael Mason at Houselogic’s offices in Parramatta to discuss the proposed arrangement between Houselogic and the respondent.
(3) On 24 March 2015 the respondent entered into an agreement with Houselogic titled “Builders Eligibility Agreement”.
(4) On 24 March 2015 Houselogic requested from the respondent a word version of his letter head. It is the respondent’s evidence that he was not aware that Houselogic used his letterhead to create invoices and receipts for the building works undertaken for the applicant. He contends that he did not authorise Houselogic to use his letterhead for those purposes.
(5) On 21 May 2015 the respondent entered into an agreement with Houselogic titled a “Project Management & Agreement Contract in respect of a project being the applicant’s proposed building works. The Agreement provided that the project was a 60m2 granny flat and that the respondent would be paid $9,747.00 for supervising, performing labour and co-ordinating construction in conjunction with the project manager, Houselogic under a building contract between the respondent and the applicant. Houselogic agreed to supply all materials, provide and manage all subcontractors and customer service required to effect completion of the building contract. The agreement also required the respondent to maintain an “active builders licence and Home Warranty Insurance during the construction period”. Further that the terms of such agreement were confidential and the respondent was unable to disclose that he had an agreement with Houselogic for the supply of goods and services.
(6) Also on 21 May 2015 the respondent signed at Houselogic’s offices:
(a) page 2 of a Fair Trading form of building contract that had been signed by the applicant on 18 May 2015. The respondent’s evidence is that this was the only page given to the respondent by Houselogic to sign, and
(b) a Project Application Form completed by Houselogic for insurance under the Home Building Compensation Fund for the applicant’s proposed building works (“HBCF Form”).
(7) On 22 May 2015 the respondent received an email from Carolyn Frichot of Houselogic attaching the HBCF Form to be signed again.
(8) On 5 June 2015 Houselogic provided evidence to the respondent that they had paid the HBCF premium for the applicant’s building work and the respondent then forwarded the HBCF Form to the insurer.
(9) From the period May 2015 until September 2015 the respondent’s evidence is that he telephoned Houselogic on a number of occasions to enquire as to when he was required to start work on the applicant’s building works and other similar arrangements offered to the respondent by Houselogic. He contends that he was not advised by Houselogic that the building work for the applicant had commenced.
(10) The respondent carried out no work on the applicant’s building and received no payment for the work that was then progressing under Houselogic’s management of the works.
(11) On 19 November 2015 the applicant contacted the respondent for the first time and the respondent’s evidence of that conversation is:
She said: When will you come to finish the granny flat at ***** Doonside?
He said: I don’t know what you are talking about! I haven’t even been to your property! I’ve never met you!
She said: Well, Mason and Mason (Houselogic) told me to call you to finish.
He said: But Houselogic has built your granny flat and left me out of it. They got their own builders and tradesmen to do all the work and now not finishing. How much have you paid them?
She said: 95% of the contract.
He said: So they stopped work after you paid them most of the contract and are now leaving me with the rest. What is left to do?
She said: The tiling, bathroom, kitchen, electrical etc.
He said: I’m really sorry for you but I’m not liable. I did not build your granny flat nor did I ever come to your site and your money has gone into their account. They have only used me for my licence and to organise the home warranty insurance.
She said: I understand.
(12) On 25 November 2015 the respondent received the Default Notice from Houselogic. In response the respondent telephoned Houselogic and informed them that the Default Notice was false and that he had never done any work on the building site or at all.
(13) On 8 December 2015, the applicant sent an email to Carolyn Frichot, Craig Martin, Kurt Cheadle of Houselogic. That email is admitted into evidence as Exhibit R1 and says:
Hi All
I am not happy that the granny flat at ***** Doonside is not progressing as per contract.
I understand that Houselogic is having challenges with the builder and certifiers.
I signed this contract through Houselogic and I expect to complete it as per the agreement.
P.S. @Kurt, you sold me this project and I am very disappointed.
I want Houselogic you get this project completed as soon as possible.

5. Before the Tribunal below, Mr Guiffre accepted that there was a building contract between Mr Guiffre and Ms Srinivasan by which Mr Guiffre undertook to carry out the building work but submitted that “there has been total failure of consideration in that the respondent carried out no work under the contract and received no payments”. Secondly Mr Guiffre contended below that “for there to be a building claim under the Home Building Act there must have been work done by the respondent as a builder”.
6. The Tribunal rejected Mr Guiffre’s submissions, finding as follows:

48. The Tribunal is satisfied that although the respondent did not perform any work under the contract he entered into the contract to carry out building works for the applicant.
49. The Tribunal is not satisfied that the respondent received no monies from the applicant for the payments made by her under the contract or from Houselogic. Houselogics role was that of a project manager and because of the Project Management and Agreement between the respondent and Houselogic, Condition 4, all monies paid under the contract by the applicant were paid to Houselogic as the project manager.
50. The respondent willingly participated in the business model managed by Houselogic. He stood to gain $9747 under the Project Management and Agreement for, amongst other things, entering into the contract with the respondent, maintaining his contractor’s licence and home owners warranty insurance for the duration of the building contract and to manage the work site. Although he performed no management of the site works, he complied with other terms of that agreement.
51. The Tribunal is not satisfied that there is a failure of consideration as alleged by the respondent. The respondent abrogated his obligations under the contract to Houselogic, without releasing himself from the promises he made to the applicant, which he has failed to fulfil.
52. The respondent is liable under the contract and therefore the obligations and statutory warranties under the HBA apply.

7. The Notice of Appeal identified five grounds of appeal as follows:

1. In finding that the appellant received monies from the respondent for payments made by her under the contract or from Houselogic [49 of the Judgment], the Tribunal made an error of law insofar as there was no evidence to support this finding of fact.
2. Alternatively to Ground 1, in finding that the appellant received monies from the respondent for payments made by her under the contract or from Houselogic [49 of the Judgment], there has been a substantial miscarriage of justice because the decision was against the weight of evidence.
3. [The Tribunal erred] In finding that there was not a total failure of consideration under the building contract between the appellant and the respondent, in circumstances where the appellant did not receive any monies under building contract from the respondent, or from Houselogic [51 of the Judgment].
4. [The Tribunal erred] In having accepted that “the [appellant] did not perform any work under the contract” [49 of the Judgment], the Tribunal found that the appellant remained liable for (any) defective and incomplete work performed by persons other than him, in breach of the statutory warranties under the Home Building Act.
5. Alternatively to Ground 4, in having accepted that “the (appellant) did not perform any work under the contract”, the Tribunal’s finding that the appellant remained liable for (any) defective and incomplete work performed by persons other than him, in breach of the statutory warranties under the Home Building Act, there has been a substantial miscarriage of justice because the decision was not fair and equitable.

8. Mr Guiffre’s rights of appeal are limited by s80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”) which provides:

“(2) Any internal appeal may be made:

(a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and

(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.

9. As this appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, by virtue of clause 12(1) of Schedule 4 to the NCAT Act, leave to appeal may only be granted under s80(2)(b):

If the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:
(a) the decision of the Tribunal under appeal was not fair and equitable, or
(b) the decision of the Tribunal under appeal was against the weight of evidence, or
(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

10. Mr Guiffre accepted that he required leave to appeal in respect of Grounds 2 and 5. In support of his application for leave to appeal Mr Guiffre submitted in respect of Grounds 2 and 5 the following:

1. Ground 2 – the only evidence in relation to whether the appellant received monies either from the respondent under the contract, or from Houselogic (which was denied), was the appellant’s sworn affidavit and the appellant’s oral evidence given at the Hearing to that effect. There was no evidence from the respondent to the contrary. He was not challenged on his assertion that he received no monies under the contract, or from Houselogic in cross examination.
2. Ground 5 – that the decision that the appellant, who stood to gain only $9,474 under the Project Management and Agreement [50 Judgment], could be liable for incomplete and defective building work (performed by others) in the amount of $27,781 (or greater if the evidence was such) results in a substantial miscarriage of justice because it is not fair and equitable.

11. In written submissions filed in accordance with directions of the Tribunal, Mr Guiffre referred to the oral evidence of Ms Srinivasan to the effect that she “accepted in cross examination that it was firmly entrenched in her mind that she was a customer of Houselogic and that she had her own customer reference number” and that “even though the invoices that were paid were on the letterhead of Prime Carpentry & Building (the appellant’s trading name), the respondent accepted in cross examination that she knew, having regard to the BSB and account number that she was paying Houselogic and not the appellant”. Mr Guiffre’s submissions also referred to his own evidence that he had not received any money from Houselogic.
12. Mr Guiffre submitted that there was no evidence that he had received money from either Ms Srinivasan or Houselogic and therefore the finding of the Member in paragraph 49 of his decision was made without evidence or alternatively was against the weight of evidence.
13. Mr Guiffre submitted alternatively that there had been a total failure of consideration because there was no basis for a finding that he had received any money from either Ms Srinivasan or from Houselogic and “it follows that the appellant has received no benefit under the contract between the appellant and the respondent. This amounts to a total failure of consideration rendering the contract void”.
14. In relation to the fourth and fifth grounds of appeal, Mr Guiffre submitted that as he had not performed any building work on the property, any defective work on the property was “not only not done by the appellant, it was work done not pursuant to the contract between the appellant and the respondent, but pursuant to some other arrangement between Houselogic and the respondent. The appellant cannot be liable for work done not pursuant to the contract between himself and the respondent”.
15. Mr Guiffre accepted that the Tribunal had found he had maintained his contractor’s licence and facilitated the issue of the home warranty insurance policy, and submitted that, while the provision of those services might be sufficient to give the Tribunal jurisdiction to hear Ms Srinivasan’s claim, “the mere provision of those services is not sufficient to make a finding that the appellant is liable for defective and incomplete work in breach of Section 18B of the Home Building Act, in circumstances where the Tribunal accepted that the appellant did not perform any work under the contract, or even attend the site”.
16. In oral submissions Mr Ahmed, who appeared for Mr Guiffre, summarised Mr Guiffre’s submission as “the decision as it apparently stands has the effect that simply signing the building contract means that the appellant is liable for anything that is done regardless that it is not done by him or done without his knowledge or authority”.
17. Mr Guiffre referred to the decision of the Court of Appeal in Building Insurers’ Guarantee Corporation v The Owners Strata Plan 60848 [2012] NSWCA 375 in which Sackville AJA, with whom McFarlane JA agreed, said (at [72]):

I agree with Bergin CJ in Eq that the primary Judge erred in law in holding that s 18B(e) of the HB Act applied to the building contract so as to make the builder liable for failing to render the building waterproof. In view of the Tribunal’s finding of fact that the building contract did not extend to waterproofing work, s 18B(e) could not operate to impose an implied term requiring the builder to carry out waterproofing work so as to render the premises fit for occupation as a dwelling.

18. Mr Guiffre also referred to the judgment of McDougall J in Owners Strata Plan No.61162 v Lipman; The Owners Strata Plan No.61162 v Building Insurers Guarantee Corporation [2014] NSWSC 482 where his Honour held at [26]:

[26] As I have foreshadowed, the approach taken by the referee was to examine the evidence to see what in fact was the work, in relation to fire safety on levels 8 and 9, actually done by Lipman (more accurately by its subcontractor Protair). The referee appears to have reasoned that if Lipman did the work, the implied statutory warranties would be attracted. That approach must be correct, I think. Accordingly, I do not think that it is necessary to consider in detail the reasoning of the Court of Appeal in a case on which Mr Young relied, Building Insurers‘ Guarantee Corporation v Owners SP 60848 [2012] NSWCA 375. I do however note that in that case, Bergin CJ in Eq (at [51] and Sackville AJA at [72]) in effect said, the implied statutory warranties are attracted to work that was done (or agreed to be done), not to work that falls outside the scope of the contract. I add that Macfarlan JA agreed with both their Honours.

and the judgment of Ball J in The Owners Strata Plan No.68372 v Allianz Australia Insurance Ltd [2014] NSWSC 1807 at [76]:

The decision in Building Insurers’ Guarantee Corporation v The Owners — Strata plan No 60848 is distinguishable because there the builder had no obligation and did no work in the relation to the exterior façade of the building.

19. Mr Guiffre submitted:

“Similarly, in the present case, the appellant did no work at the premises and accordingly cannot be liable for breach of the implied statutory warranties.”
and:
“Similarly, the appellant cannot be liable pursuant to s18B of the Home Building Act to impose an implied term requiring him to remedy defective building work that he did not do; was not required to do; was not done under the contract between himself and the respondent or, by analogy, making him liable in damages for such defective building work.”

20. Mr Labuzin, who appeared for Ms Srinivasan, submitted that the Tribunal made no error of law, that there was no failure of consideration and that Mr Guiffre was in breach of the statutory warranties. He submitted that it was agreed and understood between Mr Guiffre and Houselogic that Houselogic would act as project manager and receive the funds paid by Ms Srinivasan, that the payments by Ms Srinivasan were made to Houselogic as project manager, that Ms Srinivasan was not privy to the arrangements between Houselogic and Mr Guiffre and that Mr Guiffre is bound by his obligations under the home building contract with Ms Srinivasan.
21. Ms Srinivasan further submitted that the fact that there was no contact between Mr Guiffre and Ms Srinivasan was appropriate by reason of Houselogic’s position as project manager, and that Ms Srinivasan was only required to contact Houselogic in relation to the project.

Consideration

22. In our view none of the grounds of appeal are established. Mr Guiffre’s submissions fail to acknowledge that each of the agreements between the parties relating to Ms Srinivasan’s building project (that is the “Scope of Works and Acceptance” between Ms Srinivasan and Houselogic; the Home Building Contract between Mr Guiffre and Ms Srinivasan; and the Project Management and Agreement Contract between Mr Guiffre and Houselogic) was independent of each of the others.
23. Mr Ahmed submitted that it was necessary to construe and apply the three agreements together and referred to authorities regarding the importance of reading all documents constituting a contract as a whole. However, those authorities were not to the point, in this case there was no incorporation of one contract into the other.
24. The only sense in which the contracts were in any way interdependent was that the building contract identified the scope of works as being “Specifications: prepared by House Logic Solutions” and “Plans: prepared by House Logic Solutions [and] Structerre”.
25. The reference in the building contract to the specification prepared by Houselogic does not incorporate by reference the “Scope of Works and Acceptance” document in its entirety so as to bind Houselogic, or remove the primary responsibility for the construction of the granny flat from Mr Guiffre. The obligation to construct the building is imposed by the home building contract upon Mr Guiffre.
26. Mr Guiffre entered into an agreement (the Project Management and Agreement Contract) by which he appointed Houselogic as project manager and accepted clause 4.1 of the agreement which provided that:

“all payments from the client owner as specified in the contract, will be received, co-ordinated and managed by the Project Manager. The Builder and Project Manager will be paid upon receiving each payment from the client/owner”.

27. By that clause Mr Guiffre explicitly authorised Houselogic to receive payments for the building work on his behalf. The facts that Houselogic has:
    • (a) failed to account to Mr Guiffre for any of the moneys received;

and

(b) undertaken the building work without reference to Mr Guiffre and failed to complete the work,

are not matters that concern Ms Srinivasan. As far as Ms Srinivasan is concerned she has a contract with Mr Guiffre for the construction of a granny flat for a price of $97,900 of which she has paid $93,215. Those funds have been received by Houselogic on behalf of Mr Guiffre. We see no error in the finding at paragraph 49 of the Tribunal’s decision.

28. That is sufficient to dispose of appeal grounds 1 and 2. For the same reasons it is impossible to say there has been a total failure of consideration and appeal ground 3 must also fail.
29. By entering into the home building contract Mr Guiffre undertook to Ms Srinivasan that he would complete the construction of the dwelling. Whether that was done by Mr Guiffre’s own labours or under Mr Guiffre’s own direct supervision or whether it was done by sub-contractors, was not a matter which concerned Ms Srinivasan.
30. The authorities referred to by Mr Guiffre are distinguishable. The proposition to be extracted from the passages relied upon by Mr Guiffre is that a builder cannot be held liable under the warranties implied pursuant to s18B of the Home Building Act in respect of work which the builder neither performed nor agreed to perform. A builder who performs work is liable for defects in the work, a builder who fails to perform work he has agreed to perform is liable for the failure to perform that work.
31. Mr Guiffre as builder has failed to ensure that the work he contracted to perform was completed or carried out to the appropriate standard. Mr Guiffre is liable to Ms Srinivasan for the cost of completing the work. To the extent the completion of the work requires rectification of work completed by Houselogic, Mr Guiffre is liable for the cost of such rectification. There is no error of law in the finding that Mr Guiffre was liable for the rectification and completion of defective and incomplete work, nor is the Tribunal’s decision not fair and equitable.
32. Mr Guiffre cannot say that Ms Srinivasan has failed to make the payments required under the contract. Those payments were made to the party Mr Guiffre appointed as his agent to receive the moneys. Ms Srinivasan has fulfilled her obligations under the contract and is entitled to compensation to put her in the position she should have been in had the contract been performed.
33. The amount assessed by the Tribunal Member was the appropriate amount to accomplish that objective and, as noted, there is no appeal against the assessment of that sum. Accordingly appeal grounds 4 and 5 must fail.
34. The application for leave to appeal is refused and the appeal must be dismissed.

Costs

35. Both parties sought the costs of the appeal in the event they were successful.
36. Both parties acknowledged that the proceedings at first instance involved a claim for more than $30,000 and therefore, pursuant to Rule 38(2)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules) which provides that in proceedings in 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:
...
(b) the amount claimed or in dispute in the proceedings is more than $30,000,

the Tribunal at first instance did not need to find special circumstances in order to make an award of costs. The Tribunal did not explicitly make an award of costs and was apparently not asked to do so although we note that the cost of the expert which the Tribunal awarded as part of the judgment was strictly not compensation but rather part of Ms Srinivasan’s costs of the proceedings (see Wong v Yousif Enterprises (Aust) Pty Ltd [2016] NSWCATAP 231 at [25]- [31] and Bonita v Shen [2016] NSWCATAP 159 at [23]; cf Augustus v Mohammed  [2016] NSWCATAP 108  at  [66] -  [67] ).

37. Ms Srinivasan was self-represented before the Tribunal. However on the appeal Ms Srinivasan has legal representation and has doubtless incurred costs in so doing.
38. Both parties accepted that rule 38A of the Rules was applicable to this appeal. Rule 38A provides as follows:

38A Costs in internal appeals
(1) This rule applies to an internal appeal lodged on or after 1 January 2016 if the provisions that applied to the determination of costs in the proceedings of the Tribunal at first instance (the first instance costs provisions) differed from those set out in section 60 of the Act because of the operation of:
(a) enabling legislation, or
(b) the Division Schedule for the Division of the Tribunal concerned, or
(c) the procedural rules.
(2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal.

39. Rule 38A clearly is applicable to this appeal, the appeal is an internal appeal lodged on or after 1 January 2016 and the “first instance costs provisions” differed from those set out in s60 of the NCAT Act because of the operation of the Rules (specifically rule 38).
40. At the hearing both parties accepted that the effect of rule 38A in this case is that the Appeal Panel does not need to find special circumstances in order to award costs. However that is not the effect of rule 38A. In Allen v Tricare (Hastings) Ltd [2017] NSWCATAP 25 at [57] an Appeal Panel held that in applying rule 38, where rendered applicable in an appeal by rule 38A:

1. The determinative factor is the amount in dispute in each appeal, not the amount in dispute in the proceedings at first instance;
2. The phrase “in dispute” is to be construed as meaning truly in dispute or at issue or, inversely, not unrealistically in dispute;
3. Whether “the amount ... in dispute” in each appeal is more than $30,000 depends on whether there is a realistic prospect that in each appeal the wealth of the appealing party would be changed by more than $30,000 or, put another way, whether the right claimed by the appealing party, but denied by the decision at first instance, prejudices that party to an amount in excess of $30,000;
4. The fact that the value of the property the subject of any appeal exceeds $30,000 does not, of itself, mean that “the amount ... in dispute” in that appeal is greater than $30,000.

41. It is clear that the amount in dispute in this appeal is less than $30,000 and therefore, applying the principles set out Allen v Tricare, rule 38(2)(b) does not apply and, by virtue of s60 of the NCAT Act, it is necessary that we find that there are special circumstances before we can award costs. We are not satisfied that there are special circumstances in this case and we make no order in relation to the costs of the appeal.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar