McIntyre v DRW Constructions Pty Ltd; DRW Constructions Pty Ltd v McIntyre [2018] NSWCATCD 58

McIntyre v DRW Constructions Pty Ltd; DRW Constructions Pty Ltd v McIntyre [2018] NSWCATCD 58

The Tribunal was satisfied that costs could be determined on the papers and that the costs application was made within time. Although cl 38 of the Civil and Administrative Tribunal Rules 2014 gave a wide discretion to award costs because the amount claimed exceeded $30,000, both sides had substantial success and the proceedings had a mixed result. The Owners succeeded on the Defects Claim, Delay Claim and defence of the Builder's application, while the Builder and Mr Workman succeeded on the Costs Claim and ACL Claim. The issues on which the Builder and Mr Workman succeeded occupied a significant part of the proceedings but did not justify an apportionment order in their favour,...

Jurisdiction
Australia
Judgment Date
19 October 2018
Procedural Posture
Costs Application in Home Building Proceedings / On the Papers After Substantive Applications
Outcome
Costs hearing dispensed with; each party ordered to pay their own costs.
Legal Topics
['apportionment of Costs' 'calderbank Offer' 'whether Settlement Offer Unreasonably Refused' 'dispensing With a Hearing' 'consumer and Commercial Division Costs Discretion']
['civil Procedure' 'costs' 'home Building'] ['apportionment of Costs' 'calderbank Offer' 'whether Settlement Offer Unreasonably Refused' 'dispensing With a Hearing' 'consumer and Commercial Division Costs Discretion']

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Procedural Posture

Costs Application in Home Building Proceedings / On the Papers After Substantive Applications

Legal Issues

  1. 1 ['Should an order be made dispensing with a hearing in accordance with s 50(1)(c) of the NCAT Act?' 'Was the costs application lodged in time?' 'What costs provisions apply?' 'Should an order for costs be made in favour of the Builder and Mr Workman on an apportionment basis?' 'If so, what proportion of costs should be awarded to the Builder?' 'Should the Builder and Mr Workman be awarded costs on the basis of an offer made in a Calderbank letter?' 'If so, on what basis should any order for costs be made?']

Ratio Decidendi

The Tribunal was satisfied that costs could be determined on the papers and that the costs application was made within time. Although cl 38 of the Civil and Administrative Tribunal Rules 2014 gave a wide discretion to award costs because the amount claimed exceeded $30,000, both sides had substantial success and the proceedings had a mixed result. The Owners succeeded on the Defects Claim, Delay Claim and defence of the Builder's application, while the Builder and Mr Workman succeeded on the Costs Claim and ACL Claim. The issues on which the Builder and Mr Workman succeeded occupied a significant part of the proceedings but did not justify an apportionment order in their favour,...

Court Disposition

Costs hearing dispensed with; each party ordered to pay their own costs.

Orders

  • ['A hearing on costs is dispensed with in accordance with s 50(1)(c) of the Civil and Administrative Tribunal Act 2013.' 'The parties are to pay their own costs of proceedings HB 14/51956 and HB 16/15535.']