Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon (No 2) [2018] NSWCATAP 31

Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon (No 2) [2018] NSWCATAP 31

Clause 38A applied because the appeal was lodged after 1 January 2016 and the first instance home building proceedings were subject to cl 38, so special circumstances under s 60 were not required. The homeowners were the successful party in the appeal proceedings because they succeeded on the most significant ground and the builder's appeal failed, and there was no disentitling conduct. However, indemnity costs were refused because the 16 November 2016 letter did not make a genuine compromise beyond the result ultimately achieved, made no offer about costs, it was not unreasonable for the builder to reject it at the time, and it did not foreshadow an application for indemnity costs. Costs...

Jurisdiction
Australia
Judgment Date
31 January 2018
Procedural Posture
Costs Application Arising From Internal Appeals Under S 80(1) of the Civil and Administrative Tribunal Act 2013 in Home Building Proceedings / Appeal Panel; Costs Determined on the Papers After Substantive Appeals
Outcome
A hearing on costs was dispensed with, and National Strategic Constructions Pty Ltd was ordered to pay Paul Deacon and Emilie Deacon's costs of the appeals on the ordinary basis; indemnity costs were not awarded.
Legal Topics
['costs in Internal Appeals' 'cl 38 a of the Civil and Administrative Tribunal Rules 2014' 'calderbank Offers' 'indemnity Costs' 'ordinary Costs' 'dispensing With a Hearing']
['costs' 'civil Procedure' 'home Building'] ['costs in Internal Appeals' 'cl 38 a of the Civil and Administrative Tribunal Rules 2014' 'calderbank Offers' 'indemnity Costs' 'ordinary Costs' 'dispensing With a Hearing']

Case Brief

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Procedural Posture

Costs Application Arising From Internal Appeals Under S 80(1) of the Civil and Administrative Tribunal Act 2013 in Home Building Proceedings / Appeal Panel; Costs Determined on the Papers After Substantive Appeals

Legal Issues

  1. 1 ['Whether a hearing on costs should be dispensed with pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013' 'Whether an order for costs should be made in favour of the homeowners' 'Whether costs should be awarded on the ordinary basis or on an indemnity basis']

Ratio Decidendi

Clause 38A applied because the appeal was lodged after 1 January 2016 and the first instance home building proceedings were subject to cl 38, so special circumstances under s 60 were not required. The homeowners were the successful party in the appeal proceedings because they succeeded on the most significant ground and the builder's appeal failed, and there was no disentitling conduct. However, indemnity costs were refused because the 16 November 2016 letter did not make a genuine compromise beyond the result ultimately achieved, made no offer about costs, it was not unreasonable for the builder to reject it at the time, and it did not foreshadow an application for indemnity costs. Costs...

Court Disposition

A hearing on costs was dispensed with, and National Strategic Constructions Pty Ltd was ordered to pay Paul Deacon and Emilie Deacon's costs of the appeals on the ordinary basis; indemnity costs were not awarded.

Orders

  • ['A hearing on costs is dispensed with pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013.' "National Strategic Construction Pty Ltd is to pay Paul Deacon and Emilie Deacon's costs of the appeals in both appeal proceedings, on the ordinary basis, as agreed or assessed."]