Azzi v Phan [2017] NSWCATAP 215

Azzi v Phan [2017] NSWCATAP 215

Because Mr Azzi commenced the appeal, caused the respondent to incur costs, and then withdrew it, and because the amount in dispute exceeded $30,000 so that no special circumstances were required for costs, the proper exercise of the costs discretion was to order Mr Azzi to pay the respondent's costs of and incidental to the appeal as agreed or assessed. No disentitling conduct by the respondent was identified, and no good reason was demonstrated for an adjournment.

Jurisdiction
Australia
Judgment Date
08 September 2017
Procedural Posture
Appeal From a Decision of the NSW Civil and Administrative Tribunal, Consumer and Commercial Division, in Proceedings Brought Under the Home Building Act 1989 (nsw) / Appeal Withdrawn; Application for Costs Determined; Appeal Dismissed
Outcome
Appeal dismissed; appellant ordered to pay respondent's costs; stay dissolved.
Legal Topics
['withdrawal of Appeal' 'costs on Dismissed or Withdrawn Appeal' 'stay Dissolved' 'ncat Appeal Panel']
['civil Procedure' 'costs' 'home Building'] ['withdrawal of Appeal' 'costs on Dismissed or Withdrawn Appeal' 'stay Dissolved' 'ncat Appeal Panel']

Case Brief

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Procedural Posture

Appeal From a Decision of the NSW Civil and Administrative Tribunal, Consumer and Commercial Division, in Proceedings Brought Under the Home Building Act 1989 (nsw) / Appeal Withdrawn; Application for Costs Determined; Appeal Dismissed

Legal Issues

  1. 1 ['Whether the appellant should be permitted to withdraw the appeal and have it dismissed pursuant to s 55 of the Civil and Administrative Tribunal Act 2013 No 2 (NSW).' "Whether the appellant should pay the respondent's costs of and incidental to the appeal after withdrawing it." 'Whether an adjournment should be granted to allow the appellant to obtain legal advice on Channell v Graham [2017] NSWCATAP 129.']

Ratio Decidendi

Because Mr Azzi commenced the appeal, caused the respondent to incur costs, and then withdrew it, and because the amount in dispute exceeded $30,000 so that no special circumstances were required for costs, the proper exercise of the costs discretion was to order Mr Azzi to pay the respondent's costs of and incidental to the appeal as agreed or assessed. No disentitling conduct by the respondent was identified, and no good reason was demonstrated for an adjournment.

Court Disposition

Appeal dismissed; appellant ordered to pay respondent's costs; stay dissolved.

Orders

  • ['The appeal is dismissed pursuant to s 55 of the Civil and Administrative Tribunal Act 2013 No 2 (NSW).' "The appellant is to pay the respondent's costs of and incidental to the appeal, as agreed or assessed." 'The stay (or partial stay) made by the Tribunal on or about 19 June 2017 is dissolved forthwith.']