Stern v Addbuild Master Builders Pty Ltd (No. 4) [2023] NSWCATCD 184

Stern v Addbuild Master Builders Pty Ltd (No. 4) [2023] NSWCATCD 184

Rule 38 applied, so the Tribunal was not required to find special circumstances under s60 before making a costs order. The owner did not act unreasonably in rejecting the builder's Calderbank offer because, viewed as at 29 March 2023, the offer was made shortly before the hearing after the owner had prepared for...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
29 November 2023
Procedural Posture
Costs Application in NCAT Consumer and Commercial Division Proceedings / Post Decision Costs Determination Heard on the Papers
Outcome
Builder's costs application rejected; owner's costs application granted.
Legal Topics
['calderbank Offers' 'reasonableness of Rejection of Offer' 'costs Discretion' 'party/party Costs']
['costs' 'civil Procedure'] ['calderbank Offers' 'reasonableness of Rejection of Offer' 'costs Discretion' 'party/party Costs']

Source-derived case record

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Procedural Posture

Costs Application in NCAT Consumer and Commercial Division Proceedings / Post Decision Costs Determination Heard on the Papers

Legal Issues

  1. 1 ['Whether the Tribunal could make a costs order without finding special circumstances under s60 of the Civil and Administrative Tribunal Act 2013 because Rule 38 applied.' "Whether the owner acted unreasonably in rejecting the builder's Calderbank offer made on 29 March 2023." 'Whether the builder should receive indemnity costs or ordinary costs from 29 March 2023.' 'Whether the owner, as the successful party, should receive the costs of the proceedings on the ordinary basis.']

Ratio Decidendi

Rule 38 applied, so the Tribunal was not required to find special circumstances under s60 before making a costs order. The owner did not act unreasonably in rejecting the builder's Calderbank offer because, viewed as at 29 March 2023, the offer was made shortly before the hearing after the owner had prepared for hearing, and the $15,000.00 costs component was not reasonable given the likely legal and expert costs and the owner's opportunity to seek costs if successful. The builder did not identify any dominant or separable issue justifying a different costs order. The owner obtained an order for payment of $44,432.18 and was the successful party, with no conduct disentitling him to costs,...

Court Disposition

Builder's costs application rejected; owner's costs application granted.

Orders

  • ['Addbuild Master Builders Pty Ltd must pay Gary Stern his costs of these proceedings on a party/party basis, such costs if not agreed to be assessed on the basis set out in the legal costs legislation as defined in section 3A of the Legal Profession Uniform Law Application Act 2014.']