Tom v Jenkins (No. 2) [2018] NSWCATCD 24

Tom v Jenkins (No. 2) [2018] NSWCATCD 24

The Tribunal has jurisdiction to make a costs order after dismissing the substantive application for want of jurisdiction. The respondent as the successful party is entitled to his costs on the ordinary basis. The Calderbank offer did not foreshadow an application for indemnity costs and it was not unreasonable for the applicant to reject it, so indemnity costs will not be ordered.

Jurisdiction
Australia
Judgment Date
26 June 2018
Procedural Posture
Costs Application / Post Dismissal, Costs Determination
Outcome
application for costs granted in part
Legal Topics
['costs' 'calderbank Offers' 'home Building Claims' 'jurisdiction to Make Costs Orders']
['civil Procedure'] ['costs' 'calderbank Offers' 'home Building Claims' 'jurisdiction to Make Costs Orders']

Case Brief

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Procedural Posture

Costs Application / Post Dismissal, Costs Determination

Legal Issues

  1. 1 ['Whether the Tribunal has jurisdiction to award costs after dismissal for want of jurisdiction' 'Whether costs should follow the event in these proceedings' 'Whether the respondent is entitled to indemnity costs based on a rejected Calderbank offer']

Ratio Decidendi

The Tribunal has jurisdiction to make a costs order after dismissing the substantive application for want of jurisdiction. The respondent as the successful party is entitled to his costs on the ordinary basis. The Calderbank offer did not foreshadow an application for indemnity costs and it was not unreasonable for the applicant to reject it, so indemnity costs will not be ordered.

Court Disposition

application for costs granted in part

Orders

  • ['A hearing in respect of this costs application is dispensed with under section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).' 'Andrew Tom must pay Colin Jenkins costs of and incidental to these proceedings on the ordinary basis, such costs if not agreed to be assessed on the basis set out in the...