Abed v Cosgrove t/as Alison Arts; Cosgrove v Abed (No 2) [2018] NSWCATAP 133

Abed v Cosgrove t/as Alison Arts; Cosgrove v Abed (No 2) [2018] NSWCATAP 133

Rule 38 of the NCAT Rules did not apply to Cosgrove's cross-appeal because success on the cross-appeal would not realistically have changed Cosgrove's wealth by more than $30,000, as the order appealed from was for $10,897.50 and no costs order had been made. The applicable test was therefore s 60 of the NCAT Act. Considering the relative strengths of the parties' cases, Abed had a strong case based on expert evidence about the need for Clear Coat within the relevant timeframe, while Cosgrove's evidence was contingent and weak. Cosgrove's prospects of success, including obtaining an extension of time for the out-of-time cross-appeal, were sufficiently weak to constitute special...

Jurisdiction
Australia
Judgment Date
30 May 2018
Procedural Posture
Costs Application in NCAT Appeal Panel Proceedings Concerning an Appeal and Cross Appeal / Determined on the Papers After Abed's Appeal Was Dismissed and Cosgrove Was Refused Leave to Extend Time to Appeal and the Cross Appeal Was Dismissed
Outcome
Abed's application for costs of the cross-appeal was allowed on a party/party basis, but the request for a lump sum costs order was refused.
Legal Topics
['special Circumstances for Costs in Ncat' 'costs in Internal Appeals' 'unsuccessful Cross Appeal' 'party/party Costs' 'lump Sum Costs Order']
['civil Procedure' 'costs' 'consumer Law'] ['special Circumstances for Costs in Ncat' 'costs in Internal Appeals' 'unsuccessful Cross Appeal' 'party/party Costs' 'lump Sum Costs Order']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs Application in NCAT Appeal Panel Proceedings Concerning an Appeal and Cross Appeal / Determined on the Papers After Abed's Appeal Was Dismissed and Cosgrove Was Refused Leave to Extend Time to Appeal and the Cross Appeal Was Dismissed

Legal Issues

  1. 1 ["Whether special circumstances under s 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW) warranted an order that Cosgrove pay Abed's costs of the cross-appeal in AP 17/26175." 'Whether r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) applied to the cross-appeal.' 'Whether a lump sum costs order should be made.']

Ratio Decidendi

Rule 38 of the NCAT Rules did not apply to Cosgrove's cross-appeal because success on the cross-appeal would not realistically have changed Cosgrove's wealth by more than $30,000, as the order appealed from was for $10,897.50 and no costs order had been made. The applicable test was therefore s 60 of the NCAT Act. Considering the relative strengths of the parties' cases, Abed had a strong case based on expert evidence about the need for Clear Coat within the relevant timeframe, while Cosgrove's evidence was contingent and weak. Cosgrove's prospects of success, including obtaining an extension of time for the out-of-time cross-appeal, were sufficiently weak to constitute special...

Court Disposition

Abed's application for costs of the cross-appeal was allowed on a party/party basis, but the request for a lump sum costs order was refused.

Orders

  • ['An oral hearing is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 and the matter is determined on the papers.' 'The Appeal Panel orders that in matter AP 17/26175 the appellant Alison May Cosgrove pay the costs of the respondent Maria Abed on a party/party basis, such costs to be as...