Nu-Stone Building Pty Ltd v McInerney; McInerney v Nu-Stone Building Pty Ltd (No 3) [2024] NSWCATAP 249

Nu-Stone Building Pty Ltd v McInerney; McInerney v Nu-Stone Building Pty Ltd (No 3) [2024] NSWCATAP 249

The appropriate order as to costs at first instance is for the builder to pay the homeowners' costs, as the builder did not establish any separable or dominant issue on which it succeeded, and the homeowners were the overall successful party. On appeal, both parties succeeded, but the overall effect was a substantial reduction to the homeowners' judgment, so it is appropriate that the homeowners pay 75% of the builder's costs of the appeals.

Parties
Appellant/respondent: Nu-Stone Building Pty Ltd; First Respondent/appellant: Garry McInerney; Second Respondent/appellant: Gladys McInerney
Jurisdiction
Australia
Judgment Date
09 December 2024
Procedural Posture
Appeal / Costs Determination After Appellate Decision
Outcome
Appeal allowed in part; costs orders made as specified.
Legal Topics
Costs, Appeal, Building Disputes
Civil Procedure Costs Appeal Building Disputes

Case Brief

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Parties

Nu-Stone Building Pty Ltd

Appellant/respondent

Garry McInerney

First Respondent/appellant

Gladys McInerney

Second Respondent/appellant

Procedural Posture

Appeal / Costs Determination After Appellate Decision

Legal Issues

  1. 1 What is the appropriate order as to costs in circumstances where both parties were partially successful on appeal and at first instance?
  2. 2 Whether separable issues at first instance warrant apportionment or departure from the general costs rule.

Ratio Decidendi

The appropriate order as to costs at first instance is for the builder to pay the homeowners' costs, as the builder did not establish any separable or dominant issue on which it succeeded, and the homeowners were the overall successful party. On appeal, both parties succeeded, but the overall effect was a substantial reduction to the homeowners' judgment, so it is appropriate that the homeowners pay 75% of the builder's costs of the appeals.

Court Disposition

Appeal allowed in part; costs orders made as specified.

Orders

  • A hearing of the parties' respective costs applications is dispensed with.
  • The builder is to pay the homeowners' costs of proceedings HB 20/36393 and HB 20/15757 as agreed or assessed.