BNT Constructions Pty Ltd v Allen [2017] NSWCATAP 186

BNT Constructions Pty Ltd v Allen [2017] NSWCATAP 186

The Tribunal's costs discretion miscarried because it failed to take into account material considerations: the appellant's pre-proceedings and pre-trial offers to rectify the defects and its success in obtaining a work order rather than the monetary compensation sought by the respondents. Those matters were plainly relevant to costs, and their absence from the costs reasoning led the Appeal Panel to infer they were overlooked. The Appeal Panel therefore allowed the appeal, set aside the original costs order, and re-exercised the discretion because it had the materials to do so and remittal would add cost.

Jurisdiction
Australia
Judgment Date
07 September 2017
Procedural Posture
Internal Appeal Concerning Costs in Home Building Proceedings / Appeal From Civil and Administrative Tribunal, Consumer and Commercial Division Costs Decision
Outcome
Leave to amend granted; appeal allowed; costs decision below set aside and substituted; respondents ordered to pay the appellant's costs of the appeal on the ordinary basis unless a different costs order is sought under the directions.
Legal Topics
['appeal From Discretionary Costs Order' 'failure to Consider Relevant Considerations' 're Exercise of Costs Discretion' 'residential Building Defects' 'rectification as Preferred Outcome']
['civil Procedure' 'costs' 'home Building'] ['appeal From Discretionary Costs Order' 'failure to Consider Relevant Considerations' 're Exercise of Costs Discretion' 'residential Building Defects' 'rectification as Preferred Outcome']

Case Brief

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Procedural Posture

Internal Appeal Concerning Costs in Home Building Proceedings / Appeal From Civil and Administrative Tribunal, Consumer and Commercial Division Costs Decision

Legal Issues

  1. 1 ['Whether the Tribunal below erred in exercising its costs discretion by failing to take into account material considerations.' "Whether the appellant's offers to rectify defects and success in obtaining a work order rather than a monetary order were material to costs." 'Whether the Appeal Panel should re-exercise the costs discretion rather than remit the matter.']

Ratio Decidendi

The Tribunal's costs discretion miscarried because it failed to take into account material considerations: the appellant's pre-proceedings and pre-trial offers to rectify the defects and its success in obtaining a work order rather than the monetary compensation sought by the respondents. Those matters were plainly relevant to costs, and their absence from the costs reasoning led the Appeal Panel to infer they were overlooked. The Appeal Panel therefore allowed the appeal, set aside the original costs order, and re-exercised the discretion because it had the materials to do so and remittal would add cost.

Court Disposition

Leave to amend granted; appeal allowed; costs decision below set aside and substituted; respondents ordered to pay the appellant's costs of the appeal on the ordinary basis unless a different costs order is sought under the directions.

Orders

  • ["Leave granted to the appellant to file the Amended Notice of Appeal in the form annexed to the appellant's written submissions dated 19 June 2017." 'Appeal allowed.' "The decision of the Tribunal below as to costs be set aside, and in lieu thereof, the appellant is to pay the respondents' costs of, and incidental...