Hendie v Ikona Developments Pty Ltd [2023] NSWCATAP 256

Hendie v Ikona Developments Pty Ltd [2023] NSWCATAP 256

The owner acted unreasonably in bringing the stay and adjournment applications, so should pay the builder's costs of those applications; otherwise, as the appeal was withdrawn without determination on the merits and the owner did not act unreasonably in bringing the appeal, there should be no order as to the costs of the appeal itself.

Jurisdiction
Australia
Judgment Date
13 September 2023
Procedural Posture
Internal Appeal / Costs Determination After Withdrawal of Appeal
Outcome
Partial order for costs; application for costs otherwise dismissed.
Legal Topics
['costs' 'tribunal Appeals' 'withdrawal of Appeal']
['civil Procedure'] ['costs' 'tribunal Appeals' 'withdrawal of Appeal']

Case Brief

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Procedural Posture

Internal Appeal / Costs Determination After Withdrawal of Appeal

Legal Issues

  1. 1 ["Whether the appellant should pay the respondent's costs of the appeal, the stay application, and the adjournment application after withdrawal of the appeal"]

Ratio Decidendi

The owner acted unreasonably in bringing the stay and adjournment applications, so should pay the builder's costs of those applications; otherwise, as the appeal was withdrawn without determination on the merits and the owner did not act unreasonably in bringing the appeal, there should be no order as to the costs of the appeal itself.

Court Disposition

Partial order for costs; application for costs otherwise dismissed.

Orders

  • ["A hearing of the respondent's application for the costs of the appeal is dispensed with." "The appellant is to pay the respondent's costs of the stay application filed on 24 April 2023 as agreed or assessed under the applicable costs legislation." "The appellant is to pay the respondent's costs of the adjournment...