Toms v Dev Constructions (NSW) Pty Ltd (No 4); Dev Constructions (NSW) Pty Ltd v Toms (No 4) [2024] NSWCATCD 36

Toms v Dev Constructions (NSW) Pty Ltd (No 4); Dev Constructions (NSW) Pty Ltd v Toms (No 4) [2024] NSWCATCD 36

Costs should generally follow the event; Dev Constructions (NSW) Pty Ltd was substantially successful in its proceeding and is awarded costs except for costs associated with its refusal to grant owners access to their property between March and May 2022. In the cross-proceeding, owners had partial success (delay damages), meriting an order that the builder pay 50% of their costs. A hearing on costs is dispensed with as both parties consented and the matter could be adequately determined on the papers.

Parties
Applicant/respondent: Alexy Toms; Applicant/respondent: Sheeja Abraham; Applicant/respondent: Dev Constructions (NSW) Pty Ltd
Jurisdiction
Australia
Judgment Date
12 March 2024
Procedural Posture
Civil (consumer and Commercial Division) / Decision on Money Order and Costs After Principal Decision
Outcome
Money order and apportionment of costs as detailed in orders.
Legal Topics
Costs Orders, Principles for Awarding Costs, NCAT Rules R 38(2)(b), Mixed Success, Access Orders
Civil Procedure Costs Costs Orders Principles for Awarding Costs NCAT Rules R 38(2)(b) Mixed Success Access Orders

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Parties

Alexy Toms

Applicant/respondent

Sheeja Abraham

Applicant/respondent

Dev Constructions (NSW) Pty Ltd

Applicant/respondent

Procedural Posture

Civil (consumer and Commercial Division) / Decision on Money Order and Costs After Principal Decision

Legal Issues

  1. 1 What is the amount of the money order in favour of the builder?
  2. 2 Should a hearing on costs be dispensed with?
  3. 3 Who should bear the costs of the two proceedings and in what proportion?

Ratio Decidendi

Costs should generally follow the event; Dev Constructions (NSW) Pty Ltd was substantially successful in its proceeding and is awarded costs except for costs associated with its refusal to grant owners access to their property between March and May 2022. In the cross-proceeding, owners had partial success (delay damages), meriting an order that the builder pay 50% of their costs. A hearing on costs is dispensed with as both parties consented and the matter could be adequately determined on the papers.

Court Disposition

Money order and apportionment of costs as detailed in orders.

Orders

  • Alexy Toms and Sheeja Abraham to pay $91,257.25 to Dev Constructions (NSW) Pty Ltd immediately.
  • A hearing of the costs of the two proceedings is dispensed with.