Noureddine v Barbalace Construction Pty Ltd [2019] NSWCATAP 223

Noureddine v Barbalace Construction Pty Ltd [2019] NSWCATAP 223

The Tribunal did not err in finding the Builder was the successful party, as Owners were unsuccessful on all genuinely contested items, and resolution of agreed items did not amount to a concession of liability or a finding of defects. Consideration of the Builder's Calderbank offers did not constitute error, as they were not relevant to a claim for indemnity costs and did not amount to disentitling conduct. No substantial miscarriage of justice was established to warrant leave to appeal, and the Tribunal's exercise of discretion on costs was open and did not miscarry.

Jurisdiction
Australia
Judgment Date
10 September 2019
Procedural Posture
Appeal / Leave to Appeal and Appeal Against Costs Decision
Outcome
Leave to appeal refused and appeal dismissed; costs of appeal to respondent.
Legal Topics
['costs Orders' 'successful Party' 'discretion to Award Costs' 'calderbank Offers' 'appeal Leave Criteria']
['civil Procedure' 'tribunal Practice' 'building and Construction'] ['costs Orders' 'successful Party' 'discretion to Award Costs' 'calderbank Offers' 'appeal Leave Criteria']

Case Brief

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Procedural Posture

Appeal / Leave to Appeal and Appeal Against Costs Decision

Legal Issues

  1. 1 ['Whether the Tribunal erred in determining the successful party for costs' "Whether the Tribunal erred in its conclusions concerning the Builder's Calderbank offers" 'Whether leave to appeal should be granted for substantial miscarriage of justice']

Ratio Decidendi

The Tribunal did not err in finding the Builder was the successful party, as Owners were unsuccessful on all genuinely contested items, and resolution of agreed items did not amount to a concession of liability or a finding of defects. Consideration of the Builder's Calderbank offers did not constitute error, as they were not relevant to a claim for indemnity costs and did not amount to disentitling conduct. No substantial miscarriage of justice was established to warrant leave to appeal, and the Tribunal's exercise of discretion on costs was open and did not miscarry.

Court Disposition

Leave to appeal refused and appeal dismissed; costs of appeal to respondent.

Orders

  • ['Leave to appeal is refused.' 'The appeal is dismissed.' "The appellant is to pay the respondent's costs of the appeal, on the ordinary basis, as agreed or assessed." 'Further directions for written submissions apply if a different costs order is sought.']