Brennan v Building Zone Constructions Pty Ltd (No. 2) [2022] NSWCATAP 122

Brennan v Building Zone Constructions Pty Ltd (No. 2) [2022] NSWCATAP 122

Because the appellants challenged both liability and quantum, both parties had success on severable issues: the respondent maintained the finding on liability and the appellants had the finding on quantum set aside. The error on quantum was an oversight by the first instance member and beyond the control of either party. Applying the costs discretion under rule 38 as picked up by rule 38A, the appropriate order was that each party pay their own costs of the appeal.

Jurisdiction
Australia
Judgment Date
26 April 2022
Procedural Posture
Internal Appeal Costs Decision in NCAT Appeal Panel / On the Papers After Costs Submissions Following Appeal Decision
Outcome
Order 5 made on 31 March 2022 was set aside and each party was ordered to pay their own costs of the appeal.
Legal Topics
['costs of Appeal' 'internal Appeal' 'quantum Meruit' 'discretion to Award Costs' 'first Instance Costs Provisions']
['costs' 'civil Procedure' 'consumer and Commercial Division Appeal'] ['costs of Appeal' 'internal Appeal' 'quantum Meruit' 'discretion to Award Costs' 'first Instance Costs Provisions']

Case Brief

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Procedural Posture

Internal Appeal Costs Decision in NCAT Appeal Panel / On the Papers After Costs Submissions Following Appeal Decision

Legal Issues

  1. 1 ['Whether a hearing on the question of costs of the appeal should be dispensed with.' "Whether the respondent should pay the appellants' costs of the appeal after the appellants succeeded on quantum but failed on liability." 'Whether s 60 of the Civil and Administrative Tribunal Act 2013 or rule 38 of the Civil and Administrative Tribunal Rules 2014 governed costs of the appeal.' "Whether each party should bear their own costs where the appeal succeeded because the Tribunal at first instance failed to consider the appellants' evidence on quantum."]

Ratio Decidendi

Because the appellants challenged both liability and quantum, both parties had success on severable issues: the respondent maintained the finding on liability and the appellants had the finding on quantum set aside. The error on quantum was an oversight by the first instance member and beyond the control of either party. Applying the costs discretion under rule 38 as picked up by rule 38A, the appropriate order was that each party pay their own costs of the appeal.

Court Disposition

Order 5 made on 31 March 2022 was set aside and each party was ordered to pay their own costs of the appeal.

Orders

  • ['A hearing of the question of the costs of the appeal is dispensed with.' 'Order 5, made on 31 March 2022 in this appeal, is set aside.' 'Each party is to pay their own costs of the appeal.']