Cooper v JFW Constructions Pty Ltd [2020] NSWCATAP 218

Cooper v JFW Constructions Pty Ltd [2020] NSWCATAP 218

Leave to appeal was refused because no question of law was raised and the appellant did not demonstrate a substantial miscarriage of justice or any error in the Tribunal's costs discretion. It was open to the Tribunal to find that the respondent was the successful party, particularly because the Work Order vindicated the respondent's willingness to return to work on reasonable conditions, and the appellant did not disturb important findings that his conduct caused the dispute, continued the proceedings, involved an unjustified purported termination, and maintained an unreasonable position on provisional sums. The usual rule that costs follow the event therefore supported an order that the...

Jurisdiction
Australia
Judgment Date
22 October 2020
Procedural Posture
Appeal From a Costs Decision in Home Building Proceedings / Application for Leave to Appeal and Appeal Before the Appeal Panel
Outcome
Leave to appeal refused; appeal dismissed; appellant ordered to pay the respondent's costs of the appeal on the ordinary basis, subject to liberty to seek a different costs order under procedural directions.
Legal Topics
['leave to Appeal' 'costs Following the Event' 'successful Party' 'exercise of Costs Discretion' 'work Order' 'consumer and Commercial Division Proceedings']
['administrative Law' 'civil Procedure' 'costs' 'home Building'] ['leave to Appeal' 'costs Following the Event' 'successful Party' 'exercise of Costs Discretion' 'work Order' 'consumer and Commercial Division Proceedings']

Case Brief

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Procedural Posture

Appeal From a Costs Decision in Home Building Proceedings / Application for Leave to Appeal and Appeal Before the Appeal Panel

Legal Issues

  1. 1 ["Whether leave to appeal should be granted from the Tribunal's costs decision in the absence of a question of law." 'Whether the Tribunal erred in finding that the respondent builder was the successful party in the proceedings.' 'Whether the costs decision was not fair and equitable or was against the weight of evidence.' "Whether the Tribunal erred in exercising its discretion to order the appellant to pay the respondent's costs on the normal basis."]

Ratio Decidendi

Leave to appeal was refused because no question of law was raised and the appellant did not demonstrate a substantial miscarriage of justice or any error in the Tribunal's costs discretion. It was open to the Tribunal to find that the respondent was the successful party, particularly because the Work Order vindicated the respondent's willingness to return to work on reasonable conditions, and the appellant did not disturb important findings that his conduct caused the dispute, continued the proceedings, involved an unjustified purported termination, and maintained an unreasonable position on provisional sums. The usual rule that costs follow the event therefore supported an order that the...

Court Disposition

Leave to appeal refused; appeal dismissed; appellant ordered to pay the respondent's costs of the appeal on the ordinary basis, subject to liberty to seek a different costs order under procedural directions.

Orders

  • ['Leave to appeal is refused.' 'The appeal is dismissed.' "Subject to order 4 below, the appellant is to pay the respondent's costs of the appeal, on the ordinary basis, as agreed or assessed." 'Order 3 ceases to have effect if either party contends for a different costs order; any application for a different costs...