De Marco v Macey (No 2) [2021] NSWCATAP 354

De Marco v Macey (No 2) [2021] NSWCATAP 354

Although each ground of appeal was unsuccessful, the appellant's grounds were not unarguable, untenable or futile, apart from a broadly expressed bias allegation that was properly withdrawn in that broad form at the appeal hearing. The threshold for indemnity costs was therefore not met, and the existing order for the appellant to pay the respondents' costs on the ordinary basis should stand. The stay request was not a proper application and was unsupported by proper evidence or notice.

Jurisdiction
Australia
Judgment Date
09 November 2021
Procedural Posture
Internal Appeal Costs Application / Appeal Panel Determination on the Papers After Substantive Appeal Decision
Outcome
The respondents' application for indemnity costs was rejected, the ordinary basis costs order stood, and the appellant's informal stay request was not entertained as a proper application.
Legal Topics
['indemnity Costs' 'ordinary Basis Costs' 'costs in Internal Appeals' 'no Reasonable Prospects of Success' 'stay Application']
['civil Procedure' 'costs' 'tribunal Procedure' 'home Building'] ['indemnity Costs' 'ordinary Basis Costs' 'costs in Internal Appeals' 'no Reasonable Prospects of Success' 'stay Application']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Internal Appeal Costs Application / Appeal Panel Determination on the Papers After Substantive Appeal Decision

Legal Issues

  1. 1 ["Whether the respondents' costs of the appeal should be awarded on an indemnity basis rather than the ordinary basis." 'Whether the appeal had no prospects of success so as to justify indemnity costs.' "Whether the appellant's informal request for a stay should be dealt with."]

Ratio Decidendi

Although each ground of appeal was unsuccessful, the appellant's grounds were not unarguable, untenable or futile, apart from a broadly expressed bias allegation that was properly withdrawn in that broad form at the appeal hearing. The threshold for indemnity costs was therefore not met, and the existing order for the appellant to pay the respondents' costs on the ordinary basis should stand. The stay request was not a proper application and was unsupported by proper evidence or notice.

Court Disposition

The respondents' application for indemnity costs was rejected, the ordinary basis costs order stood, and the appellant's informal stay request was not entertained as a proper application.

Orders

  • ["Order that the appellant pay the respondents' costs of the appeal on the ordinary basis as agreed or assessed."]