D Constructions Pty Ltd v Walsh [2020] NSWCATAP 91

D Constructions Pty Ltd v Walsh [2020] NSWCATAP 91

Rule 38 applied because the first instance proceedings were in the Consumer and Commercial Division and the amount claimed or in dispute was $40,000, so costs could be awarded without special circumstances. The appellant withdrew the appeal after the respondents had filed a reply, there was no evidence of settlement or any supervening event, and the appellant filed no submissions suggesting otherwise. The withdrawal was therefore effectively a surrender, and there was no good reason to deprive the respondents of the costs they had incurred in meeting the appeal.

Jurisdiction
Australia
Judgment Date
20 May 2020
Procedural Posture
Application for Costs by Respondents to an Internal Appeal / Appeal Panel Determination on the Papers After the Appellant Withdrew the Appeal and the Appeal Was Dismissed
Outcome
The respondents' costs application was allowed; a hearing on costs was dispensed with and the appellant was ordered to pay the respondents' costs of the appeal.
Legal Topics
['costs on Appeal' 'withdrawal of Appeal' 'dismissal Under S 55(1)(a) of the Civil and Administrative Tribunal Act 2013 (nsw)' 'costs Discretion Under Rr 38 and 38 a of the Civil and Administrative Tribunal Rules 2014 (nsw)' 'no Hearing on the Merits' 'surrender or Capitulation']
['civil Procedure' 'costs' 'consumer and Commercial Tribunal Proceedings'] ['costs on Appeal' 'withdrawal of Appeal' 'dismissal Under S 55(1)(a) of the Civil and Administrative Tribunal Act 2013 (nsw)' 'costs Discretion Under Rr 38 and 38 a of the Civil and Administrative Tribunal Rules 2014 (nsw)' 'no Hearing on the Merits' 'surrender or Capitulation']

Case Brief

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Procedural Posture

Application for Costs by Respondents to an Internal Appeal / Appeal Panel Determination on the Papers After the Appellant Withdrew the Appeal and the Appeal Was Dismissed

Legal Issues

  1. 1 ['Whether a hearing on the costs application should be dispensed with.' 'Whether rr 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) applied to the costs of the internal appeal.' 'Whether the respondents should receive their costs of the appeal where the appellant withdrew the appeal before any hearing on the merits.']

Ratio Decidendi

Rule 38 applied because the first instance proceedings were in the Consumer and Commercial Division and the amount claimed or in dispute was $40,000, so costs could be awarded without special circumstances. The appellant withdrew the appeal after the respondents had filed a reply, there was no evidence of settlement or any supervening event, and the appellant filed no submissions suggesting otherwise. The withdrawal was therefore effectively a surrender, and there was no good reason to deprive the respondents of the costs they had incurred in meeting the appeal.

Court Disposition

The respondents' costs application was allowed; a hearing on costs was dispensed with and the appellant was ordered to pay the respondents' costs of the appeal.

Orders

  • ['A hearing on costs is dispensed with.' "The appellant is to pay the respondents' costs of the appeal as agreed or assessed in accordance with s 60(4)(b) of the NCAT Act."]