Delt Constructions Pty Ltd ABN 49604204015 v Able Business Pty Ltd ACN 246456948 & Anor [2024] NSWDC 91

Delt Constructions Pty Ltd ABN 49604204015 v Able Business Pty Ltd ACN 246456948 & Anor [2024] NSWDC 91

Although the Plaintiff was successful overall and the Defendants did not justify denying costs after 22 May 2023, the Plaintiff's claim before that date could not succeed because it had not pleaded the necessary discretionary relief under Home Building Act 1989 (NSW) s 94(1A). Justice between the parties required each party to bear its own costs before 22 May 2023, with the Defendants to pay the Plaintiff's costs from that date and of the costs motion.

Jurisdiction
Australia
Judgment Date
27 March 2024
Procedural Posture
Civil Costs Decision in Building Proceedings / On the Papers Following Judgment for the Plaintiff
Outcome
Costs ordered partly in favour of the Plaintiff, limited to costs from 22 May 2023, with each party to bear its own earlier costs.
Legal Topics
['costs Following the Event' 'departure From Usual Costs Rule' 'residential Building Work Without Required Insurance' 'quantum Meruit Under Home Building Act 1989 (nsw) S 94(1 A)']
['civil Procedure' 'costs' 'building and Construction'] ['costs Following the Event' 'departure From Usual Costs Rule' 'residential Building Work Without Required Insurance' 'quantum Meruit Under Home Building Act 1989 (nsw) S 94(1 A)']

Case Brief

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Procedural Posture

Civil Costs Decision in Building Proceedings / On the Papers Following Judgment for the Plaintiff

Legal Issues

  1. 1 ['Whether the presumption that costs follow the event should be departed from where the Plaintiff achieved overall success.' "Whether the Plaintiff's reliance on discretionary relief under Home Building Act 1989 (NSW) s 94(1A) justified denying or limiting its costs." "Whether the Plaintiff's late pleading of s 94(1A), abandonment of other claims, and recovery of less than the amount claimed justified a different costs order."]

Ratio Decidendi

Although the Plaintiff was successful overall and the Defendants did not justify denying costs after 22 May 2023, the Plaintiff's claim before that date could not succeed because it had not pleaded the necessary discretionary relief under Home Building Act 1989 (NSW) s 94(1A). Justice between the parties required each party to bear its own costs before 22 May 2023, with the Defendants to pay the Plaintiff's costs from that date and of the costs motion.

Court Disposition

Costs ordered partly in favour of the Plaintiff, limited to costs from 22 May 2023, with each party to bear its own earlier costs.

Orders

  • ['That each party to bear its own costs, including reserved costs, prior to 22 May 2023.' "That the Defendants pay the Plaintiff's costs of and incidental to the proceedings as agreed or assessed on a party and party basis from 22 May 2023." "That the Defendants pay the Plaintiff's costs of this motion."]