Cubic Metre Pty Ltd v C & E Critharis Constructions Pty Ltd [2019] NSWCATAP 130

Cubic Metre Pty Ltd v C & E Critharis Constructions Pty Ltd [2019] NSWCATAP 130

The Tribunal applied the wrong principle by relying on case law pertaining to different legislative provisions not applicable to the present matter. The correct approach involved the principles set out in Lai Qin, considering reasonableness of both parties' conduct and whether there was near certainty of success. The builder did not act unreasonably in commencing or withdrawing the application, nor was the appellant almost certain to succeed if the case were tried. Accordingly, there is no order as to costs for the withdrawn proceedings.

Jurisdiction
Australia
Judgment Date
28 May 2019
Procedural Posture
Civil Appeal / Appeal Decision
Outcome
Appeal allowed; application for costs in the proceedings HB 17/50093 refused.
Legal Topics
['costs' 'appeals' 'withdrawal of Proceedings' 'tribunal Procedure']
['civil Procedure' 'building and Construction Law'] ['costs' 'appeals' 'withdrawal of Proceedings' 'tribunal Procedure']

Case Brief

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Procedural Posture

Civil Appeal / Appeal Decision

Legal Issues

  1. 1 ['Whether the Tribunal applied the correct legal principles in refusing costs after withdrawal of proceedings under Rule 38 of the Civil and Administrative Tribunal Rules 2014.' 'Whether the appeal panel should substitute its own decision on costs under the proper exercise of discretion.']

Ratio Decidendi

The Tribunal applied the wrong principle by relying on case law pertaining to different legislative provisions not applicable to the present matter. The correct approach involved the principles set out in Lai Qin, considering reasonableness of both parties' conduct and whether there was near certainty of success. The builder did not act unreasonably in commencing or withdrawing the application, nor was the appellant almost certain to succeed if the case were tried. Accordingly, there is no order as to costs for the withdrawn proceedings.

Court Disposition

Appeal allowed; application for costs in the proceedings HB 17/50093 refused.

Orders

  • ['Appeal allowed.' "The appellant's application for costs in the proceedings HB 17/50093 is refused." 'The respondent is to notify the Appeal Panel and the appellant in writing if it makes an application for costs with evidence and submissions in support by 15 June 2019.' 'The appellant shall provide to the Appeal...