The Craftsmen Restoration & Renovations Pty Ltd v Boland (No 2) [2011] NSWCA 221

The Craftsmen Restoration & Renovations Pty Ltd v Boland (No 2) [2011] NSWCA 221

The builder succeeded in showing that the Common Law Division costs order should be varied, but because much of the hearing before the primary judge resulted from both parties' misguided attempt to have factual disputes resolved on an appeal of limited scope, only 25% of the builder's Common Law Division costs should be paid by the owners. In this Court, the builder was successful in overturning the judgment below and, after its final offer made on 4 May 2011 closed on 11 May 2011, the owners' failure to accept that offer was unreasonable given the likely outcomes and costs consequences. The builder was therefore entitled to its appeal costs on the usual basis up to and including 11 May...

Jurisdiction
Australia
Judgment Date
01 August 2011
Procedural Posture
Costs Ruling on Appeal / Application on the Papers to Vary Costs Orders Made on 8 June 2011
Outcome
Orders made on 8 June 2011 varied; owners granted a Suitors' Fund certificate; Registrar directed to enter the orders forthwith.
Legal Topics
['costs Following the Event' 'indemnity Costs' 'offers of Compromise' 'costs Before Primary Judge' 'remittal to Tribunal' "suitors' Fund Certificate"]
['civil Procedure' 'costs' 'appeals' 'consumer and Tenancy Tribunal Proceedings' 'home Building Disputes'] ['costs Following the Event' 'indemnity Costs' 'offers of Compromise' 'costs Before Primary Judge' 'remittal to Tribunal' "suitors' Fund Certificate"]

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Procedural Posture

Costs Ruling on Appeal / Application on the Papers to Vary Costs Orders Made on 8 June 2011

Legal Issues

  1. 1 ["Whether the costs order for the proceedings in the Common Law Division should be varied so that the owners pay the builder's costs before the primary judge." 'Whether the builder should receive indemnity costs in this Court because the owners did not accept offers of compromise.' 'Whether the owners should instead bear no costs of the appeal except for their unsuccessful application to cross-appeal.' "Whether the owners should receive a certificate under the Suitors' Fund Act 1951 (NSW)."]

Ratio Decidendi

The builder succeeded in showing that the Common Law Division costs order should be varied, but because much of the hearing before the primary judge resulted from both parties' misguided attempt to have factual disputes resolved on an appeal of limited scope, only 25% of the builder's Common Law Division costs should be paid by the owners. In this Court, the builder was successful in overturning the judgment below and, after its final offer made on 4 May 2011 closed on 11 May 2011, the owners' failure to accept that offer was unreasonable given the likely outcomes and costs consequences. The builder was therefore entitled to its appeal costs on the usual basis up to and including 11 May...

Court Disposition

Orders made on 8 June 2011 varied; owners granted a Suitors' Fund certificate; Registrar directed to enter the orders forthwith.

Orders

  • ['The Court should vary the orders made on 8 June 2011 to read: "(2) (d) order that the owners pay 25% of the builder\'s costs of the proceedings in the Common Law Division. (5) Order the owners to pay the builder\'s costs of the proceedings in this Court, on the usual basis up to and including 11 May 2011 and...