TA & JR O’Keefe Pty Ltd v Holroyd [2015] NSWCATAP 198

TA & JR O’Keefe Pty Ltd v Holroyd [2015] NSWCATAP 198

Because Rule 38 did not apply to costs of an appeal before the Appeal Panel, a costs order could only be made under s 60 of the Civil and Administrative Tribunal Act 2013 if special circumstances were established. The builder identified no special circumstances despite succeeding on the appeal. The owner did not establish that the late-raised successful ground caused materially wasted work or expense, because the builder maintained its other grounds and the owner would have prepared to answer them in any event. The council did not establish special circumstances because it was always likely to participate actively given its role in the contract and settlement, and the builder's imperfect...

Jurisdiction
Australia
Judgment Date
21 September 2015
Procedural Posture
Costs Applications on Appeal / Determination on the Papers by the Appeal Panel After the Appeal Against a Costs Order Was Allowed
Outcome
All applications for costs dismissed; each party to pay its own costs.
Legal Topics
['costs on Appeal' 'special Circumstances' 'appeal Panel Costs Discretion' 'residential Building Contract Dispute']
['civil Procedure' 'costs' 'tribunal Proceedings'] ['costs on Appeal' 'special Circumstances' 'appeal Panel Costs Discretion' 'residential Building Contract Dispute']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs Applications on Appeal / Determination on the Papers by the Appeal Panel After the Appeal Against a Costs Order Was Allowed

Legal Issues

  1. 1 ['Whether a hearing on costs should be dispensed with and the costs applications determined on the papers.' 'Whether special circumstances warranted an award of costs in favour of the builder, the owner, or the council.' 'Whether Rule 38 of the Civil and Administrative Tribunal Rules 2014 applied to costs of an appeal before the Appeal Panel.']

Ratio Decidendi

Because Rule 38 did not apply to costs of an appeal before the Appeal Panel, a costs order could only be made under s 60 of the Civil and Administrative Tribunal Act 2013 if special circumstances were established. The builder identified no special circumstances despite succeeding on the appeal. The owner did not establish that the late-raised successful ground caused materially wasted work or expense, because the builder maintained its other grounds and the owner would have prepared to answer them in any event. The council did not establish special circumstances because it was always likely to participate actively given its role in the contract and settlement, and the builder's imperfect...

Court Disposition

All applications for costs dismissed; each party to pay its own costs.

Orders

  • ['A hearing on costs is dispensed with in accordance with s 50(1)(c) of the Civil and Administrative Tribunal Act 2013.' 'The applications for costs are dismissed.' 'The parties are to pay their own costs.']