Hertslet v Doherty; Doherty v Hertslet [2016] NSWCATAP 46

Hertslet v Doherty; Doherty v Hertslet [2016] NSWCATAP 46

The Tribunal erred in law by applying costs principles relevant after a contested hearing instead of the principles applicable where proceedings have settled, and by failing to address the homeowners' application for indemnity costs. On the new hearing, none of the recognised exceptions to the usual no-order-as-to-costs position applied: the Calderbank offer was not shown to have been unreasonably rejected in the relevant sense, it was not almost certain the homeowners would have succeeded without conducting an impermissible hypothetical trial, and the settlement was a compromise rather than capitulation. The procedural fairness challenge failed because NCAT Procedural Direction 3 did not...

Jurisdiction
Australia
Judgment Date
23 February 2016
Procedural Posture
Internal Appeal to the Appeal Panel From Costs Decisions in Home Building Proceedings / Appeals Allowed in Relation to HB 13/50846 and Costs Applications Determined by Way of New Hearing; Appeal From HB 13/34899 Withdrawn and Dismissed
Outcome
Contractor's appeal and homeowners' cross-appeal concerning HB 13/50846 allowed; orders set aside; costs applications reheard and refused; contractor's appeal from HB 13/34899 withdrawn and dismissed; bias application and homeowners' application for costs on appeal refused.
Legal Topics
['costs After Settlement' 'indemnity Costs' 'calderbank Offers' 'procedural Fairness' 'apprehended Bias' 'appeal From Discretionary Costs Decision' 'new Hearing on Appeal']
['administrative Law' 'civil Procedure' 'costs' 'home Building'] ['costs After Settlement' 'indemnity Costs' 'calderbank Offers' 'procedural Fairness' 'apprehended Bias' 'appeal From Discretionary Costs Decision' 'new Hearing on Appeal']

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Procedural Posture

Internal Appeal to the Appeal Panel From Costs Decisions in Home Building Proceedings / Appeals Allowed in Relation to HB 13/50846 and Costs Applications Determined by Way of New Hearing; Appeal From HB 13/34899 Withdrawn and Dismissed

Legal Issues

  1. 1 ['Whether the Tribunal applied the wrong legal principles by determining costs after settled proceedings as if costs followed a contested hearing outcome.' 'Whether the Tribunal breached procedural fairness by determining costs after participating in conciliation and without asking for objections.' 'Whether Senior Member Goldstein should disqualify himself for apprehended bias.' "Whether the Tribunal erred by failing to address the homeowners' application for indemnity costs." 'Whether, on a new hearing, any exception justified ordering costs after settlement.' 'Whether special circumstances warranted costs of the appeal.']

Ratio Decidendi

The Tribunal erred in law by applying costs principles relevant after a contested hearing instead of the principles applicable where proceedings have settled, and by failing to address the homeowners' application for indemnity costs. On the new hearing, none of the recognised exceptions to the usual no-order-as-to-costs position applied: the Calderbank offer was not shown to have been unreasonably rejected in the relevant sense, it was not almost certain the homeowners would have succeeded without conducting an impermissible hypothetical trial, and the settlement was a compromise rather than capitulation. The procedural fairness challenge failed because NCAT Procedural Direction 3 did not...

Court Disposition

Contractor's appeal and homeowners' cross-appeal concerning HB 13/50846 allowed; orders set aside; costs applications reheard and refused; contractor's appeal from HB 13/34899 withdrawn and dismissed; bias application and homeowners' application for costs on appeal refused.

Orders

  • ["AP 15/41467: The contractor's application for Senior Member Goldstein to disqualify himself for bias is refused." "AP 15/41467: Appeal from Tribunal's decision in HB 13/34899 is withdrawn and dismissed." "AP 15/41467: Appeal from Tribunal's decision in HB 13/50846 dated 4 June 2015 is allowed and the orders are...