Pat Arcella and Carmen Arcella v Turrell Building Services Pty Limited Turrell Building Services Pty Limited v Pat Arcella and Carmen Arcella [2014] NSWCATCD 90

Pat Arcella and Carmen Arcella v Turrell Building Services Pty Limited Turrell Building Services Pty Limited v Pat Arcella and Carmen Arcella [2014] NSWCATCD 90

Because the sums claimed exceeded $30,000.00, clause 20(4) gave the Tribunal a wide discretion to award costs without any requirement to find special circumstances. The homeowners were substantially and, in relevant respects, wholly successful: their evidence on payments and moneys owed was accepted, the builder's debt claim was dismissed in its entirety, a damages award was made in their favour, and there was no misconduct disentitling them to costs. Late concessions by the builder did not materially reduce the homeowners' preparation costs. Costs were therefore ordered in favour of the homeowners for both proceedings on the ordinary basis as agreed or assessed.

Jurisdiction
Australia
Judgment Date
29 May 2014
Procedural Posture
Home Building Defective Building Claim and Builder's Cross Claim; Costs Application / Costs Determination After Substantive Proceedings Were Decided
Outcome
The builder was ordered to pay the homeowners' costs of both proceedings on the ordinary basis as agreed or assessed.
Legal Topics
['costs Following the Event' 'tribunal Discretion to Award Costs' 'incomplete Proceedings Transitional Provisions' 'defective Building Work' "builder's Debt Claim"]
['civil Procedure' 'costs' 'consumer, Trader and Tenancy' 'home Building'] ['costs Following the Event' 'tribunal Discretion to Award Costs' 'incomplete Proceedings Transitional Provisions' 'defective Building Work' "builder's Debt Claim"]

Case Brief

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Procedural Posture

Home Building Defective Building Claim and Builder's Cross Claim; Costs Application / Costs Determination After Substantive Proceedings Were Decided

Legal Issues

  1. 1 ['Whether the Tribunal could award costs without finding special circumstances where the amount claimed or in dispute exceeded $30,000.00.' 'Whether the homeowners were successful parties entitled to costs of both proceedings.' "Whether the builder's partial resistance to some defective item claims or late concessions justified refusing or reducing a costs order."]

Ratio Decidendi

Because the sums claimed exceeded $30,000.00, clause 20(4) gave the Tribunal a wide discretion to award costs without any requirement to find special circumstances. The homeowners were substantially and, in relevant respects, wholly successful: their evidence on payments and moneys owed was accepted, the builder's debt claim was dismissed in its entirety, a damages award was made in their favour, and there was no misconduct disentitling them to costs. Late concessions by the builder did not materially reduce the homeowners' preparation costs. Costs were therefore ordered in favour of the homeowners for both proceedings on the ordinary basis as agreed or assessed.

Court Disposition

The builder was ordered to pay the homeowners' costs of both proceedings on the ordinary basis as agreed or assessed.

Orders

  • ["Turrell Building Services Pty Limited is to pay Pat Arcella's and Carmen Arcella's costs of both proceedings HB 12/42741 and HB 12 /52981 on the ordinary basis as agreed or assessed." 'Pursuant to section 50 of the Consumer Trader and Tenancy Tribunal Act 2001 the words Turrells Building Services were deleted and...