Knox v Bollen; Bollen v Knox [2018] NSWCATAP 106

Knox v Bollen; Bollen v Knox [2018] NSWCATAP 106

The appeals were dismissed because the Appeal Panel was not satisfied that either party established error in the Tribunal's costs discretion or inadequate reasons. It was open to the Tribunal, on the available evidence including the expert material and the settlement context, to find that Mr Knox was almost certain to have been successful had the proceedings gone to hearing, and also open to find that his refusal of the 26 May 2017 offer was unreasonable because the later agreement only marginally bettered it and further hearing-related costs would necessarily be incurred. Mr Bollen's delay was not satisfactorily explained and his appeal lacked substantial merit, so time was not extended....

Jurisdiction
Australia
Judgment Date
04 May 2018
Procedural Posture
Internal Appeals Under S 80(2) of the Civil and Administrative Tribunal Act 2013 (nsw) Against a Costs Decision in Home Building Proceedings / Appeal Panel Decision on Leave to Appeal, Extension of Time, and Appeals
Outcome
Leave to appeal refused for Mr Knox; Mr Knox's appeal dismissed. Mr Bollen's application for an extension of time refused; leave to appeal refused; Mr Bollen's appeal dismissed. Procedural directions made for any costs applications.
Legal Topics
['internal Appeals' 'leave to Appeal' 'extension of Time' 'costs Where Proceedings Settled' 'adequacy of Reasons' 'consumer and Commercial Division Proceedings']
['civil Procedure' 'costs' 'home Building' 'administrative Law'] ['internal Appeals' 'leave to Appeal' 'extension of Time' 'costs Where Proceedings Settled' 'adequacy of Reasons' 'consumer and Commercial Division Proceedings']

Case Brief

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Procedural Posture

Internal Appeals Under S 80(2) of the Civil and Administrative Tribunal Act 2013 (nsw) Against a Costs Decision in Home Building Proceedings / Appeal Panel Decision on Leave to Appeal, Extension of Time, and Appeals

Legal Issues

  1. 1 ["Whether time should be extended for Mr Bollen's appeal." 'Whether the Tribunal applied the legal principles relevant to costs where proceedings settled without a hearing on the merits.' 'Whether the Tribunal erred in finding that Mr Knox was almost certain to have been substantially successful had the matter gone to hearing.' 'Whether the Tribunal gave adequate reasons for its costs decision.' "Whether the Tribunal erred by applying cl 38 of the Civil and Administrative Tribunal Rules 2014 rather than s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) to Mr Bollen's application." "Whether Mr Knox's refusal of the 26 May 2017 offer was unreasonable." 'Whether either party established a basis for leave to appeal.']

Ratio Decidendi

The appeals were dismissed because the Appeal Panel was not satisfied that either party established error in the Tribunal's costs discretion or inadequate reasons. It was open to the Tribunal, on the available evidence including the expert material and the settlement context, to find that Mr Knox was almost certain to have been successful had the proceedings gone to hearing, and also open to find that his refusal of the 26 May 2017 offer was unreasonable because the later agreement only marginally bettered it and further hearing-related costs would necessarily be incurred. Mr Bollen's delay was not satisfactorily explained and his appeal lacked substantial merit, so time was not extended....

Court Disposition

Leave to appeal refused for Mr Knox; Mr Knox's appeal dismissed. Mr Bollen's application for an extension of time refused; leave to appeal refused; Mr Bollen's appeal dismissed. Procedural directions made for any costs applications.

Orders

  • ['AP 17/39697: Leave to appeal is refused.' 'AP 17/39697: The appeal is dismissed.' 'AP 17/45110: The application for an extension of time is refused.' 'AP 17/45110: Leave to appeal is refused.' 'AP 17/45110: The appeal is dismissed.' 'Both appeals: Any application for costs is to be filed and served within 14 days...