CPD Holdings Pty Limited v Baguley [2016] NSWCATAP 103

CPD Holdings Pty Limited v Baguley [2016] NSWCATAP 103

The Appeal Panel found the Tribunal erred in its treatment of costs thrown away due to the adjournment and in failing to consider whether the builder was almost certain to have succeeded in its claim had it been fully heard, as required by Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin. The costs orders were not fair and equitable and should be reconsidered by the Tribunal.

Parties
Appellant: CPD Holdings Pty Limited; 1st Respondent: John Baguley; 2nd Respondent: Daniella Baguley
Jurisdiction
Australia
Judgment Date
12 May 2016
Procedural Posture
Internal Appeal (costs) in Home Building Case / Appeal Panel Decision
Outcome
Orders under appeal set aside; applications for costs to be reconsidered by Tribunal; leave to appeal granted on adjournment costs issue.
Legal Topics
Costs Discretion, Costs Following Settlement, Procedural Fairness, Appeal Leave Criteria
Civil Procedure Costs Home Building Costs Discretion Costs Following Settlement Procedural Fairness Appeal Leave Criteria

Case Brief

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Parties

CPD Holdings Pty Limited

Appellant

John Baguley

1st Respondent

Daniella Baguley

2nd Respondent

Procedural Posture

Internal Appeal (costs) in Home Building Case / Appeal Panel Decision

Legal Issues

  1. 1 Whether the Tribunal erred in its application of costs principles when proceedings settled and when proceedings determined
  2. 2 Whether the Tribunal failed to consider costs thrown away due to adjournment
  3. 3 Whether procedural fairness was denied in relation to the way costs orders were made

Ratio Decidendi

The Appeal Panel found the Tribunal erred in its treatment of costs thrown away due to the adjournment and in failing to consider whether the builder was almost certain to have succeeded in its claim had it been fully heard, as required by Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin. The costs orders were not fair and equitable and should be reconsidered by the Tribunal.

Court Disposition

Orders under appeal set aside; applications for costs to be reconsidered by Tribunal; leave to appeal granted on adjournment costs issue.

Orders

  • Leave to appeal is granted in relation to the decision as to costs thrown away because of an adjournment.
  • The decision that CPD Holdings Pty Limited shall pay John Baguley and Daniella Baguley's costs in proceedings HB 13/27768 from 19 September 2013 (costs to be agreed or assessed on the usual basis) is set aside.