Smeaton v Valerius [2016] NSWCATAP 98

Smeaton v Valerius [2016] NSWCATAP 98

Special circumstances justified a costs order because the homeowners conducted the appeal in a manner that unnecessarily disadvantaged the builder, including pursuing and only abandoning at the hearing a significant ground, filing voluminous irrelevant material, and continuing to rely on matters irrelevant to appeal costs. However, because the homeowners had partial success on a substantial costs-related issue that the builder could properly have conceded, they should not bear all of the builder's appeal costs. The appropriate order was that the Appellants pay half of the Respondent's costs of the Appeal on the ordinary basis; the 31 March 2015 offer did not justify indemnity costs...

Jurisdiction
Australia
Judgment Date
04 May 2016
Procedural Posture
Appeal in Civil and Administrative Tribunal of New South Wales, Appeal Panel / Decision on Costs of the Appeal Following Earlier Appeal Decision and Remittal on Costs
Outcome
Costs awarded in part to the Respondent; the Appellants must pay half of the Respondent's costs of the Appeal on the ordinary basis.
Legal Topics
['procedural Fairness' 'costs in NCAT Proceedings' 'special Circumstances for Costs' 'appeal Costs' 'submissions']
['civil Procedure' 'costs' 'administrative Law'] ['procedural Fairness' 'costs in NCAT Proceedings' 'special Circumstances for Costs' 'appeal Costs' 'submissions']

Case Brief

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Procedural Posture

Appeal in Civil and Administrative Tribunal of New South Wales, Appeal Panel / Decision on Costs of the Appeal Following Earlier Appeal Decision and Remittal on Costs

Legal Issues

  1. 1 ['Whether special circumstances warranted an award of costs of the appeal under s 60 of the Civil and Administrative Tribunal Act 2013.' "Whether the homeowners should pay the builder's costs, despite having partially succeeded in the appeal." "Whether the builder's Calderbank offer justified indemnity costs from 31 March 2015."]

Ratio Decidendi

Special circumstances justified a costs order because the homeowners conducted the appeal in a manner that unnecessarily disadvantaged the builder, including pursuing and only abandoning at the hearing a significant ground, filing voluminous irrelevant material, and continuing to rely on matters irrelevant to appeal costs. However, because the homeowners had partial success on a substantial costs-related issue that the builder could properly have conceded, they should not bear all of the builder's appeal costs. The appropriate order was that the Appellants pay half of the Respondent's costs of the Appeal on the ordinary basis; the 31 March 2015 offer did not justify indemnity costs...

Court Disposition

Costs awarded in part to the Respondent; the Appellants must pay half of the Respondent's costs of the Appeal on the ordinary basis.

Orders

  • ["The Appellants pay half of the Respondent's costs of the Appeal."]