Middleton v Wrona (No 2) [2023] NSWCATAP 251

Middleton v Wrona (No 2) [2023] NSWCATAP 251

The parties' mixed success—homeowners being successful on defect claims and the builder successful on the restitution issue—warranted proportional orders for costs rather than a strict application of 'costs follow the event'; accordingly, the builder was ordered to pay 70% of homeowners' costs at first instance, and the homeowners to pay 50% of builder's costs on appeal, with appropriate exclusions for specific applications.

Parties
Appellant (builder): Lee Kenneth Middleton; First Respondent (homeowner): Linda May Wrona; Second Respondent (homeowner): Richard John Wrona
Jurisdiction
Australia
Judgment Date
04 September 2023
Procedural Posture
Appeal / Costs Determination Following Partial Allowance of Appeal
Outcome
Costs apportioned according to parties' relative success; specific orders made for payment of agreed or assessed percentages of costs, with some exclusions.
Legal Topics
Costs Orders, Apportionment of Costs, Australian Consumer Law, Home Building Disputes
Civil Procedure Consumer Law Building and Construction Costs Orders Apportionment of Costs Australian Consumer Law Home Building Disputes

Case Brief

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Parties

Lee Kenneth Middleton

Appellant (builder)

Linda May Wrona

First Respondent (homeowner)

Richard John Wrona

Second Respondent (homeowner)

Procedural Posture

Appeal / Costs Determination Following Partial Allowance of Appeal

Legal Issues

  1. 1 Whether to dispense with a hearing of the costs application
  2. 2 Appropriate apportionment of costs following mixed success on appeal and at first instance
  3. 3 Principles applicable to costs where success is mixed over discrete issues

Ratio Decidendi

The parties' mixed success—homeowners being successful on defect claims and the builder successful on the restitution issue—warranted proportional orders for costs rather than a strict application of 'costs follow the event'; accordingly, the builder was ordered to pay 70% of homeowners' costs at first instance, and the homeowners to pay 50% of builder's costs on appeal, with appropriate exclusions for specific applications.

Court Disposition

Costs apportioned according to parties' relative success; specific orders made for payment of agreed or assessed percentages of costs, with some exclusions.

Orders

  • Tribunal dispenses with a hearing of the application for costs pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).
  • In applications HB 20/12879 and HB 21/11458, the respondent (builder) is to pay the applicants (homeowners) seventy percent (70%) of the applicants' costs of both proceedings, as agreed or assessed on an ordinary basis.