Catapult Constructions Pty Ltd v Denison (No 3) [2018] NSWCATAP 277

Catapult Constructions Pty Ltd v Denison (No 3) [2018] NSWCATAP 277

The Appeal Panel lacked jurisdiction to determine first instance costs because the Tribunal had made no decision on costs in HB 15/52872 or HB 15/53181, and an oral exchange about future costs submissions did not enliven s 81 jurisdiction. For the appeal, although the Builder established error concerning the work order, it failed on the dominant issues of breach and causation and the appeal succeeded only to a limited extent; a practical and appropriate costs outcome was that each party bear its own costs. The Calderbank offer did not justify indemnity or different appeal costs because rejection was not shown to be unreasonable in light of the extensive work orders ultimately made.

Jurisdiction
Australia
Judgment Date
26 November 2018
Procedural Posture
Internal Appeal in Home Building Proceedings Concerning Costs / Costs Determined on the Papers After Appeal Allowed in Part and Amended Work Order Made
Outcome
Appeal Panel held it had no jurisdiction to determine costs of the first instance proceedings and ordered each party to bear their own costs of the appeal.
Legal Topics
['appeal Panel Jurisdiction' 'costs of First Instance Proceedings' 'costs of Internal Appeal' 'work Orders Under Home Building Act 1989 S 48 O' 'calderbank Offer']
['civil Procedure' 'costs' 'home Building'] ['appeal Panel Jurisdiction' 'costs of First Instance Proceedings' 'costs of Internal Appeal' 'work Orders Under Home Building Act 1989 S 48 O' 'calderbank Offer']

Case Brief

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Procedural Posture

Internal Appeal in Home Building Proceedings Concerning Costs / Costs Determined on the Papers After Appeal Allowed in Part and Amended Work Order Made

Legal Issues

  1. 1 ['Whether the Appeal Panel had jurisdiction to determine costs of the first instance proceedings HB 15/52872 and HB 15/53181 where no costs decision had been made at first instance.' 'Whether costs of the internal appeal AP 17/46569 should be awarded to either party or borne by each party.' "Whether the Builder's May 2016 Calderbank offer justified a different costs order for the appeal."]

Ratio Decidendi

The Appeal Panel lacked jurisdiction to determine first instance costs because the Tribunal had made no decision on costs in HB 15/52872 or HB 15/53181, and an oral exchange about future costs submissions did not enliven s 81 jurisdiction. For the appeal, although the Builder established error concerning the work order, it failed on the dominant issues of breach and causation and the appeal succeeded only to a limited extent; a practical and appropriate costs outcome was that each party bear its own costs. The Calderbank offer did not justify indemnity or different appeal costs because rejection was not shown to be unreasonable in light of the extensive work orders ultimately made.

Court Disposition

Appeal Panel held it had no jurisdiction to determine costs of the first instance proceedings and ordered each party to bear their own costs of the appeal.

Orders

  • ['As to HB 15/52872 and HB 15/53181: The Appeal Panel has no jurisdiction to determine costs. Either party may apply to the Senior Member of the Tribunal who heard Matter HB 15/52872 and HB 15/53181 for a determination of costs in those proceedings.' 'As to AP 17/46569: Oral hearing dispensed with on the issue of...