Hiperia Holdings Pty Limited v Sghabi; Sghabi v Hiperia Holdings Pty Limited [2024] NSWCATAP 152

Hiperia Holdings Pty Limited v Sghabi; Sghabi v Hiperia Holdings Pty Limited [2024] NSWCATAP 152

The Tribunal exercised its discretion to set aside the original costs order and replace it with an order for the builder to pay 75% of the owner's costs for Tribunal proceedings, reflecting that the owner was still the successful party except for separable major items. The builder's application for indemnity costs for appeal was refused because the Calderbank offer did not constitute a genuine compromise and it was not unreasonable to refuse. The parties are to pay their own costs of the costs application.

Jurisdiction
Australia
Judgment Date
07 August 2024
Procedural Posture
Appeal / Costs Application and Appeal Determination
Outcome
Mixed success; costs orders varied; parties to pay own costs for costs application.
Legal Topics
['proportionate Costs' 'mixed Success' 'calderbank Offer' 'genuine Offer of Compromise' 'statutory Warranties' 'residential Building Work' 'consumer and Commercial Division' 'appeal Procedure']
['costs'] ['proportionate Costs' 'mixed Success' 'calderbank Offer' 'genuine Offer of Compromise' 'statutory Warranties' 'residential Building Work' 'consumer and Commercial Division' 'appeal Procedure']

Case Brief

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Procedural Posture

Appeal / Costs Application and Appeal Determination

Legal Issues

  1. 1 ['Should a hearing on costs be dispensed with?' "Should the Tribunal's costs order be set aside and a different order made?" "Should the owner be ordered to pay the builder's costs of the appeal on an indemnity basis?" 'What order, if any, should be made in respect of costs of the costs application?']

Ratio Decidendi

The Tribunal exercised its discretion to set aside the original costs order and replace it with an order for the builder to pay 75% of the owner's costs for Tribunal proceedings, reflecting that the owner was still the successful party except for separable major items. The builder's application for indemnity costs for appeal was refused because the Calderbank offer did not constitute a genuine compromise and it was not unreasonable to refuse. The parties are to pay their own costs of the costs application.

Court Disposition

Mixed success; costs orders varied; parties to pay own costs for costs application.

Orders

  • ['A hearing is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013.' "Hiperia Holdings Pty Ltd's application for costs of the appeal proceedings on an indemnity basis is refused." 'Order 4 made on 11 June 2024 in appeal proceedings AP 2023/00289266 is reinstated.' 'Order 2 made on 14...