Betta Build Group Pty Ltd v El Baba (No. 3) [2020] NSWDC 272

Betta Build Group Pty Ltd v El Baba (No. 3) [2020] NSWDC 272

Although the First Offer was a genuine attempt at settlement, the Owner did not demonstrate that the Builder's rejection of it was unreasonable when assessed prospectively. The offer was made while the matter was before NCAT, the explanation given was not compelling, there was insufficient evidence to assess whether the Builder's contemporaneous objections were unreasonable, and the ultimate findings on defective works depended substantially on expert evidence whose decisive effect would have been difficult to predict at that time. Because the Builder accepted indemnity costs from 5 February 2019, the appropriate order was ordinary costs up to and including that date and indemnity costs...

Jurisdiction
Australia
Judgment Date
04 June 2020
Procedural Posture
Civil Costs Application Following Building Proceedings Transferred From NCAT / On the Papers After Judgment, Determining the Defendant/cross Claimant's Application for Ordinary and Indemnity Costs
Outcome
The defendant/cross-claimant obtained a partial indemnity costs order from 5 February 2019, but the application for indemnity costs from the date of the First Offer was rejected; each party was ordered to bear its own costs of the costs application.
Legal Topics
['indemnity Costs' 'calderbank Offers' 'offers of Compromise' 'ncat Costs' 'home Building Statutory Warranties']
['civil Procedure' 'costs' 'building and Construction'] ['indemnity Costs' 'calderbank Offers' 'offers of Compromise' 'ncat Costs' 'home Building Statutory Warranties']

Case Brief

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Procedural Posture

Civil Costs Application Following Building Proceedings Transferred From NCAT / On the Papers After Judgment, Determining the Defendant/cross Claimant's Application for Ordinary and Indemnity Costs

Legal Issues

  1. 1 ['Whether the defendant/cross-claimant should receive indemnity costs from the date of the First Offer made on 3 July 2018.' "Whether the plaintiff's rejection of the First Offer was unreasonable in the circumstances known at the time." 'What costs order should be made where the defendant/cross-claimant obtained a no less favourable result but the First Offer was made while the dispute was before NCAT.' 'What order should be made for the costs of the costs application.']

Ratio Decidendi

Although the First Offer was a genuine attempt at settlement, the Owner did not demonstrate that the Builder's rejection of it was unreasonable when assessed prospectively. The offer was made while the matter was before NCAT, the explanation given was not compelling, there was insufficient evidence to assess whether the Builder's contemporaneous objections were unreasonable, and the ultimate findings on defective works depended substantially on expert evidence whose decisive effect would have been difficult to predict at that time. Because the Builder accepted indemnity costs from 5 February 2019, the appropriate order was ordinary costs up to and including that date and indemnity costs...

Court Disposition

The defendant/cross-claimant obtained a partial indemnity costs order from 5 February 2019, but the application for indemnity costs from the date of the First Offer was rejected; each party was ordered to bear its own costs of the costs application.

Orders

  • ["Without derogation of any previous cost orders made in the proceeding, the plaintiff is to pay the defendant/cross-claimant's costs of the proceeding on the ordinary basis up to and including 5 February 2019." "Without derogation of any previous cost orders made in the proceeding, the plaintiff is to pay the...