Paterson v BRK Projects Pty Ltd [2021] NSWCATAP 1

Paterson v BRK Projects Pty Ltd [2021] NSWCATAP 1

The Appeal Panel upheld the Tribunal's decision that the builder's letter of 21 January 2019 was a relevant Calderbank offer, that the offer was more favourable than the ultimate consent orders, and that the owners' rejection of the offer was unreasonable in the circumstances, justifying an order for indemnity costs from the date after the offer. No error of law or erroneous exercise of discretion was found.

Parties
Appellants: Michael Paterson and Sarina Locke; Respondent: BRK Projects Pty Ltd
Jurisdiction
Australia
Judgment Date
07 January 2021
Procedural Posture
Appeal / Decision of the Appeal Panel Following Appeal From Costs Orders of the Tribunal
Outcome
Appeal dismissed
Legal Topics
Calderbank Offers, Costs Discretion, Settlement Offers, Rectification Work, Home Building Disputes
Civil Procedure Costs Building and Construction Calderbank Offers Costs Discretion Settlement Offers Rectification Work Home Building Disputes

Case Brief

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Parties

Michael Paterson and Sarina Locke

Appellants

BRK Projects Pty Ltd

Respondent

Procedural Posture

Appeal / Decision of the Appeal Panel Following Appeal From Costs Orders of the Tribunal

Legal Issues

  1. 1 Whether a Calderbank offer must include an offer to pay the offeree's costs to ground an indemnity costs order
  2. 2 Whether the Tribunal erred in its comparison of a Calderbank offer and consent orders for purposes of costs
  3. 3 Whether it was unreasonable for the owners to reject the builder's Calderbank offer

Ratio Decidendi

The Appeal Panel upheld the Tribunal's decision that the builder's letter of 21 January 2019 was a relevant Calderbank offer, that the offer was more favourable than the ultimate consent orders, and that the owners' rejection of the offer was unreasonable in the circumstances, justifying an order for indemnity costs from the date after the offer. No error of law or erroneous exercise of discretion was found.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed.
  • The respondent may file written submissions in respect of the costs of the appeal by 1 February 2021.