Walsh v Sandeberg [2017] NSWCATAP 152

Walsh v Sandeberg [2017] NSWCATAP 152

Because the first instance proceedings were Consumer and Commercial Division Home Building Act proceedings with more than $30,000 in dispute, Rule 38 applied at first instance and, through Rule 38A, governed costs in the internal appeal; the Appeal Panel was therefore not required to find special circumstances. The respondents were successful and there was no disentitling conduct, so they were entitled to ordinary costs. Although their Calderbank offer was genuine, clear, open for 28 days, and foreshadowed indemnity costs, the appellant's rejection was not unreasonable because his main appeal ground was arguable and based on Court of Appeal authority; indemnity costs were therefore refused.

Jurisdiction
Australia
Judgment Date
19 July 2017
Procedural Posture
Costs Application in Internal Appeal / Appeal Panel; on the Papers After Appeal Dismissed
Outcome
The respondents were awarded their costs of the appeal on the ordinary basis; indemnity costs were refused.
Legal Topics
['indemnity Costs' 'ordinary Costs' 'calderbank Offer' 'internal Appeals' 'ncat Costs Jurisdiction']
['costs' 'civil Procedure' 'administrative Law'] ['indemnity Costs' 'ordinary Costs' 'calderbank Offer' 'internal Appeals' 'ncat Costs Jurisdiction']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Costs Application in Internal Appeal / Appeal Panel; on the Papers After Appeal Dismissed

Legal Issues

  1. 1 ['Whether the Appeal Panel should award the successful respondents their costs of the appeal.' 'Whether Rule 38A of the Civil and Administrative Tribunal Rules 2014 required the Appeal Panel to apply first instance costs provisions rather than the special circumstances requirement in section 60 of the Civil and Administrative Tribunal Act 2013.' "Whether the appellant's rejection of the respondents' Calderbank offer dated 5 July 2016 was unreasonable so as to justify indemnity costs."]

Ratio Decidendi

Because the first instance proceedings were Consumer and Commercial Division Home Building Act proceedings with more than $30,000 in dispute, Rule 38 applied at first instance and, through Rule 38A, governed costs in the internal appeal; the Appeal Panel was therefore not required to find special circumstances. The respondents were successful and there was no disentitling conduct, so they were entitled to ordinary costs. Although their Calderbank offer was genuine, clear, open for 28 days, and foreshadowed indemnity costs, the appellant's rejection was not unreasonable because his main appeal ground was arguable and based on Court of Appeal authority; indemnity costs were therefore refused.

Court Disposition

The respondents were awarded their costs of the appeal on the ordinary basis; indemnity costs were refused.

Orders

  • ["The appellant must pay the respondents' costs of, and incidental to, these Appeal proceedings, 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."]