Goncalves v Bora Developments Pty Ltd; Bora Developments Pty Ltd v Goncalves (No 2) [2020] NSWCATAP 112

Goncalves v Bora Developments Pty Ltd; Bora Developments Pty Ltd v Goncalves (No 2) [2020] NSWCATAP 112

Because the parties agreed and the written material was sufficient, the cost issues could be determined on the papers. The first instance costs provisions applied to the internal appeals through r 38A, and the amounts in dispute exceeded $30,000, so the usual rule that costs follow the event applied. Although both parties had some success, the owner was substantially more successful on the interrelated appeals, while the builder's successful issues were peripheral and not easily severable. Accordingly, the builder should pay the owner's costs of both appeals, the costs order in HB 18/13808 should be set aside, and the costs of HB18/13808 and HB18/16404 should be costs in the cause on...

Jurisdiction
Australia
Judgment Date
17 June 2020
Procedural Posture
Costs Determination in Internal Cross Appeals in a Home Building Dispute / Appeal Panel Determination on the Papers After Appeal Decision and Remittal
Outcome
The Appeal Panel dispensed with a hearing, ordered the builder to pay the owner's costs of both appeals, set aside the costs order made in HB 18/13808, and ordered that the costs of the initial proceedings be costs in the cause on remittal.
Legal Topics
['costs on Internal Appeals' 'rule 38 a of the Civil and Administrative Tribunal Rules 2013' 'costs Follow the Event' 'amount in Dispute Exceeding $30, 000' 'costs in the Cause on Remittal' 'self Represented Litigant Costs']
['costs' 'civil Procedure' 'consumer and Commercial Division' 'home Building'] ['costs on Internal Appeals' 'rule 38 a of the Civil and Administrative Tribunal Rules 2013' 'costs Follow the Event' 'amount in Dispute Exceeding $30,000' 'costs in the Cause on Remittal' 'self Represented Litigant Costs']

Case Brief

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Procedural Posture

Costs Determination in Internal Cross Appeals in a Home Building Dispute / Appeal Panel Determination on the Papers After Appeal Decision and Remittal

Legal Issues

  1. 1 ['Whether the cost issues in the appeals should be determined without a hearing.' 'Whether the costs order made in HB 18/13808 should be set aside and whether the costs of the initial proceedings should be costs in the cause on remittal.' 'Whether the Appeal Panel should award costs of the internal appeals under r 38A of the Civil and Administrative Tribunal Rules 2013.' 'Whether the two appeals should be treated together or separately for the purposes of costs.' "Whether the builder should pay the owner's costs of both appeals despite each party having some success."]

Ratio Decidendi

Because the parties agreed and the written material was sufficient, the cost issues could be determined on the papers. The first instance costs provisions applied to the internal appeals through r 38A, and the amounts in dispute exceeded $30,000, so the usual rule that costs follow the event applied. Although both parties had some success, the owner was substantially more successful on the interrelated appeals, while the builder's successful issues were peripheral and not easily severable. Accordingly, the builder should pay the owner's costs of both appeals, the costs order in HB 18/13808 should be set aside, and the costs of HB18/13808 and HB18/16404 should be costs in the cause on...

Court Disposition

The Appeal Panel dispensed with a hearing, ordered the builder to pay the owner's costs of both appeals, set aside the costs order made in HB 18/13808, and ordered that the costs of the initial proceedings be costs in the cause on remittal.

Orders

  • ['Pursuant to s 50{2) Civil and Administrative Tribunal Act 2013 we dispense with a hearing with respect to the cost issues in these appeals AP19/277713 and AP19/28235.' "With respect to both appeals AP19/277713 and AP19/28235, the builder should pay the owner's costs of the appeals as agreed or, in default of...