Gaskell v Nazha [2021] NSWCATAP 406

Gaskell v Nazha [2021] NSWCATAP 406

The respondent could not be ordered to pay costs referable to the separate claim against the company, but the Home Building Compensation Fund insurance payout related to the claim against the company and not the claim against the respondent. By carrying over the $79,899 deduction, the Tribunal gave the respondent the benefit of an insurance payout to which he was not entitled, which was an error of law because it involved taking into account an irrelevant consideration. The appeal was allowed and the costs order was varied by deleting the deduction.

Jurisdiction
Australia
Judgment Date
15 December 2021
Procedural Posture
Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 / Appeal From a Costs Order Made in the Consumer and Commercial Division on 5 August 2021
Outcome
Appeal allowed; costs order varied by deleting the words "less $79,899"; parties to pay their own costs of the appeal unless a different costs order is sought under the stated directions.
Legal Topics
['internal Appeal' 'costs Order' 'irrelevant Consideration' 'home Building Compensation Fund Insurance Proceeds' 'misleading and Deceptive Conduct' 'residential Building Work Defects']
['administrative Law' 'civil Procedure' 'costs' 'consumer Law' 'home Building'] ['internal Appeal' 'costs Order' 'irrelevant Consideration' 'home Building Compensation Fund Insurance Proceeds' 'misleading and Deceptive Conduct' 'residential Building Work Defects']

Case Brief

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Procedural Posture

Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 / Appeal From a Costs Order Made in the Consumer and Commercial Division on 5 August 2021

Legal Issues

  1. 1 ["Whether the costs order made against the respondent should have been confined to the appellants' case against the respondent." 'Whether the $79,899 deduction attributable to the Home Building Compensation Fund payout should have been applied to the costs order against the respondent.' 'Whether the Tribunal made an error of law by taking into account an irrelevant consideration.']

Ratio Decidendi

The respondent could not be ordered to pay costs referable to the separate claim against the company, but the Home Building Compensation Fund insurance payout related to the claim against the company and not the claim against the respondent. By carrying over the $79,899 deduction, the Tribunal gave the respondent the benefit of an insurance payout to which he was not entitled, which was an error of law because it involved taking into account an irrelevant consideration. The appeal was allowed and the costs order was varied by deleting the deduction.

Court Disposition

Appeal allowed; costs order varied by deleting the words "less $79,899"; parties to pay their own costs of the appeal unless a different costs order is sought under the stated directions.

Orders

  • ['Appeal allowed.' 'Order 2 made on 5 August 2021 in proceedings HB 18/12924 is varied by deleting the words "less $79,899" so it reads: "Sami Nazha must pay Aaron Gaskell\'s and Serena Bourke\'s costs of and incidental to their case against him in HB 18/12924 on the ordinary basis, such costs if not agreed to be...