Jubian v Clark (No 2); Clark v Jubian (No 2) [2016] NSWCATAP 153

Jubian v Clark (No 2); Clark v Jubian (No 2) [2016] NSWCATAP 153

The Appeal Panel dismissed all costs applications because section 60 of the Civil and Administrative Tribunal Act 2013 made each party responsible for its own costs unless special circumstances warranted a costs order, and neither party established such special circumstances. The failure or success of an appeal did not of itself suffice, the homeowners' delay and lack of merit did not show relevant prejudice or delay to the builder, and the parties did not demonstrate that any rejected settlement offer gave rise to special circumstances.

Jurisdiction
Australia
Judgment Date
20 July 2016
Procedural Posture
Costs Applications in Appeal Panel Proceedings Arising From Home Building Proceedings / On the Papers After Dismissal of Both Appeals and Applications for Leave to Appeal
Outcome
All costs applications dismissed; each party remains to pay its own costs under section 60(1).
Legal Topics
['special Circumstances for Costs Under Section 60 of the Civil and Administrative Tribunal Act 2013' 'costs in NCAT Appeal Panel Proceedings' 'offers of Compromise' 'calderbank Offers']
['civil Procedure' 'costs' 'consumer and Commercial Division' 'home Building'] ['special Circumstances for Costs Under Section 60 of the Civil and Administrative Tribunal Act 2013' 'costs in NCAT Appeal Panel Proceedings' 'offers of Compromise' 'calderbank Offers']

Case Brief

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Procedural Posture

Costs Applications in Appeal Panel Proceedings Arising From Home Building Proceedings / On the Papers After Dismissal of Both Appeals and Applications for Leave to Appeal

Legal Issues

  1. 1 ["Whether there were special circumstances warranting an award of costs under section 60 of the Civil and Administrative Tribunal Act 2013 in the homeowners' appeal AP 15/34863." "Whether there were special circumstances warranting an award of costs under section 60 of the Civil and Administrative Tribunal Act 2013 in the builder's appeal AP 15/05271." 'Whether rejection of offers of compromise gave rise to special circumstances warranting ordinary or indemnity costs.']

Ratio Decidendi

The Appeal Panel dismissed all costs applications because section 60 of the Civil and Administrative Tribunal Act 2013 made each party responsible for its own costs unless special circumstances warranted a costs order, and neither party established such special circumstances. The failure or success of an appeal did not of itself suffice, the homeowners' delay and lack of merit did not show relevant prejudice or delay to the builder, and the parties did not demonstrate that any rejected settlement offer gave rise to special circumstances.

Court Disposition

All costs applications dismissed; each party remains to pay its own costs under section 60(1).

Orders

  • ['The application of Mr Clark and Ms Loneragan that Mr Jubian pay their costs in AP 15/05271 is dismissed.' 'The application of Mr Clark and Ms Loneragan that Mr Jubian pay their costs in AP 15/34863 is dismissed.' 'The application of Mr Jubian that Mr Clark and Ms Loneragan pay his costs in AP 15/34863 is dismissed.']