Gilliland v Kingdom Building Pty Ltd [2023] NSWCATCD 87

Gilliland v Kingdom Building Pty Ltd [2023] NSWCATCD 87

Because the proceedings were settled by consent and not determined on the merits, the usual position was no order as to costs. Although cl 38(2)(b) applied because the amount claimed or in dispute exceeded $30,000, neither party had capitulated or surrendered, neither party had acted unreasonably, the homeowner's rejection of the builder's offer was not unreasonable because the settlement outcome was better in material respects, and it could not be said with certainty which party would have succeeded or obtained costs. The parties' respective costs applications were therefore dismissed and each party was ordered to bear its own costs.

Jurisdiction
Australia
Judgment Date
22 August 2023
Procedural Posture
Residential Building Dispute Costs Application / Costs Determined on the Papers After Substantive Proceedings Settled by Consent and Not Determined on the Merits
Outcome
Hearing on costs dispensed with; both costs applications dismissed; each party to bear its own costs.
Legal Topics
['costs Where Proceedings Resolved by Consent' 'ncat Costs Discretion' 'dispensing With a Hearing' 'calderbank Offers' 'residential Building Statutory Warranties']
['costs' 'consumer and Commercial Law' 'home Building'] ['costs Where Proceedings Resolved by Consent' 'ncat Costs Discretion' 'dispensing With a Hearing' 'calderbank Offers' 'residential Building Statutory Warranties']

Case Brief

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Procedural Posture

Residential Building Dispute Costs Application / Costs Determined on the Papers After Substantive Proceedings Settled by Consent and Not Determined on the Merits

Legal Issues

  1. 1 ['Whether a hearing on costs should be dispensed with under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).' 'Whether cl 38(2)(b) of the Civil and Administrative Tribunal Rules (NSW) 2014 applied because the amount claimed or in dispute exceeded $30,000.' 'Whether either party was entitled to an award of costs where the proceedings settled and were not determined on the merits.' 'Whether either party acted unreasonably, capitulated or surrendered, or would certainly have succeeded so as to justify a costs order.' "Whether the homeowner unreasonably rejected the builder's Calderbank offer."]

Ratio Decidendi

Because the proceedings were settled by consent and not determined on the merits, the usual position was no order as to costs. Although cl 38(2)(b) applied because the amount claimed or in dispute exceeded $30,000, neither party had capitulated or surrendered, neither party had acted unreasonably, the homeowner's rejection of the builder's offer was not unreasonable because the settlement outcome was better in material respects, and it could not be said with certainty which party would have succeeded or obtained costs. The parties' respective costs applications were therefore dismissed and each party was ordered to bear its own costs.

Court Disposition

Hearing on costs dispensed with; both costs applications dismissed; each party to bear its own costs.

Orders

  • ['A hearing on costs is dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).' "The parties' respective costs applications are dismissed." 'Each party is to bear its own costs.']