Ward v Makhlouf & Anor [2017] NSWCATCD 30

Ward v Makhlouf & Anor [2017] NSWCATCD 30

It was unreasonable for the applicant to refuse the open settlement offer of 19 August 2016, as its terms were substantially similar to the Tribunal's ultimate orders and adequately compensated the applicant for party/party costs. Accordingly, costs shifted in favour of the respondents from 27 August 2016; builder did not clearly seek indemnity costs, so party/party basis applies.

Jurisdiction
Australia
Judgment Date
10 April 2017
Procedural Posture
Costs Application Under Consumer and Commercial Division (home Building Act 1989) / Post Final Orders; Determination of Costs
Outcome
Costs awarded: up to and including 26 August 2016, respondents pay applicant's costs (party/party basis); from 27 August 2016, applicant pays respondents' costs (party/party basis).
Legal Topics
['calderbank Offers' 'indemnity Costs' 'party/party Costs' 'special Circumstances' 'preferred Outcomes Under Home Building Act' 'work Orders Vs Money Orders']
['costs' 'home Building'] ['calderbank Offers' 'indemnity Costs' 'party/party Costs' 'special Circumstances' 'preferred Outcomes Under Home Building Act' 'work Orders Vs Money Orders']

Case Brief

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Procedural Posture

Costs Application Under Consumer and Commercial Division (home Building Act 1989) / Post Final Orders; Determination of Costs

Legal Issues

  1. 1 ['Whether the applicant or respondents are entitled to costs of proceedings' 'Effect of Calderbank and open settlement offers on costs orders' 'Application of party/party or indemnity basis to costs' 'Effect of section 48MA Home Building Act 1989 (preferred outcome)']

Ratio Decidendi

It was unreasonable for the applicant to refuse the open settlement offer of 19 August 2016, as its terms were substantially similar to the Tribunal's ultimate orders and adequately compensated the applicant for party/party costs. Accordingly, costs shifted in favour of the respondents from 27 August 2016; builder did not clearly seek indemnity costs, so party/party basis applies.

Court Disposition

Costs awarded: up to and including 26 August 2016, respondents pay applicant's costs (party/party basis); from 27 August 2016, applicant pays respondents' costs (party/party basis).

Orders

  • ["Pierre Makhlouf and DG Development and Construction Pty Ltd must pay Gillian Ward's costs of and incidental to these proceedings up to and including 26 August 2016 on a party/party basis, such costs if not agreed to be assessed pursuant to the provisions of the Legal Profession Uniform Law Application Act 2014."...