BCA Constructions Pty Ltd v Arsovski [2024] NSWCATAP 31

BCA Constructions Pty Ltd v Arsovski [2024] NSWCATAP 31

The Tribunal applied an incorrect legal principle by making a costs order based on satisfaction that the owners were more likely to obtain 'some work order' rather than almost certain overall success; given unresolved substantial factual disputes, this was not one of the rare cases for a costs order after settlement without hearing. Therefore, no order as to costs should be made.

Jurisdiction
Australia
Judgment Date
01 March 2024
Procedural Posture
Civil Appeal / Appeal Panel Decision on Costs
Outcome
Appeal allowed in part. Tribunal's order for costs set aside. No order as to costs in first instance proceedings. Other orders as stated.
Legal Topics
['costs' 'consent Orders' 'statutory Warranties' 'settlement Without Hearing' 'appeal']
['civil Procedure' 'building and Construction' 'administrative Law'] ['costs' 'consent Orders' 'statutory Warranties' 'settlement Without Hearing' 'appeal']

Case Brief

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Procedural Posture

Civil Appeal / Appeal Panel Decision on Costs

Legal Issues

  1. 1 ['Whether a costs order should be made in favour of a party where proceedings settle without determination on the merits' 'Correct legal principles to apply under r 38 Civil and Administrative Tribunal Rules 2014 (NSW) after settlement' 'Whether Tribunal applied the correct standard for awarding costs in absence of a hearing']

Ratio Decidendi

The Tribunal applied an incorrect legal principle by making a costs order based on satisfaction that the owners were more likely to obtain 'some work order' rather than almost certain overall success; given unresolved substantial factual disputes, this was not one of the rare cases for a costs order after settlement without hearing. Therefore, no order as to costs should be made.

Court Disposition

Appeal allowed in part. Tribunal's order for costs set aside. No order as to costs in first instance proceedings. Other orders as stated.

Orders

  • ['Order 2 made by the Tribunal on 28 February 2023 in Matter HB 21/29512 is set aside and there is no order as to costs in those proceedings.' "The appellant's application for leave to rely on the affidavit of Stephen Charles Dawson dated 23 March 2023 is refused." 'The appeal is otherwise dismissed.' 'If there is a...