Rockwall Constructions Pty Ltd v Nayak (No 2) [2018] NSWCATAP 32

Rockwall Constructions Pty Ltd v Nayak (No 2) [2018] NSWCATAP 32

Because cl 38A required the Appeal Panel to apply the first instance costs provisions and the homeowners were clearly successful in the appeal, they were entitled to their appeal costs absent disentitling conduct. The 26 April 2017 Calderbank offer was a genuine compromise, made early, open for a reasonable time, clearly expressed, and foreshadowed indemnity costs; the builder had minimal prospects of success at that date and unreasonably failed to accept it. The builder was therefore ordered to pay the homeowners' appeal costs on the ordinary basis until 25 April 2017 and on an indemnity basis thereafter.

Jurisdiction
Australia
Judgment Date
01 February 2018
Procedural Posture
Application for Costs Arising From an Internal Appeal Under S 80(1) of the Civil and Administrative Tribunal Act 2013 (nsw) in Home Building Proceedings / Appeal Panel Costs Determination on the Papers After Leave to Appeal Was Refused and the Appeal Was Dismissed
Outcome
Costs application granted; hearing on costs dispensed with; builder ordered to pay homeowners' appeal costs on ordinary and indemnity bases for different periods.
Legal Topics
['costs in Internal Appeals' 'successful Party Costs' 'calderbank Offers' 'indemnity Costs' 'dispensing With Hearing']
['costs' 'civil and Administrative Tribunal Procedure' 'home Building'] ['costs in Internal Appeals' 'successful Party Costs' 'calderbank Offers' 'indemnity Costs' 'dispensing With Hearing']

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Procedural Posture

Application for Costs Arising From an Internal Appeal Under S 80(1) of the Civil and Administrative Tribunal Act 2013 (nsw) in Home Building Proceedings / Appeal Panel Costs Determination on the Papers After Leave to Appeal Was Refused and the Appeal Was Dismissed

Legal Issues

  1. 1 ['Whether a hearing on costs should be dispensed with under s 50(1)(c) of the Civil and Administrative Tribunal Act 2013.' 'Whether costs should be ordered in favour of the homeowners as the successful parties in the appeal.' "Whether the builder should pay costs on an indemnity basis because it unreasonably rejected the homeowners' Calderbank offer."]

Ratio Decidendi

Because cl 38A required the Appeal Panel to apply the first instance costs provisions and the homeowners were clearly successful in the appeal, they were entitled to their appeal costs absent disentitling conduct. The 26 April 2017 Calderbank offer was a genuine compromise, made early, open for a reasonable time, clearly expressed, and foreshadowed indemnity costs; the builder had minimal prospects of success at that date and unreasonably failed to accept it. The builder was therefore ordered to pay the homeowners' appeal costs on the ordinary basis until 25 April 2017 and on an indemnity basis thereafter.

Court Disposition

Costs application granted; hearing on costs dispensed with; builder ordered to pay homeowners' appeal costs on ordinary and indemnity bases for different periods.

Orders

  • ['A hearing on costs is dispensed with pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013.' "Rockwall Constructions Pty Ltd is to pay Srinivas Nayak and Deepti Nayak's costs of the appeal, on the ordinary basis until 25 April 2017 and on an indemnity basis thereafter."]