Terence Eve and Lindy Eve v John Boyd t/as Kalana Homes [2014] NSWCATCD 152

Terence Eve and Lindy Eve v John Boyd t/as Kalana Homes [2014] NSWCATCD 152

The applicants were wholly successful and it was reasonable for them to maintain all issues, including the encroachment issue, until council confirmation of the easement was obtained on 24 March 2014. The remaining defect issues properly remained for hearing, and the applicants' rejection of the respondent's Calderbank offer was not unreasonable or delinquent. There was therefore no sufficient basis to depart from the ordinary costs order in favour of the successful parties.

Jurisdiction
Australia
Judgment Date
12 August 2014
Procedural Posture
Costs Application in Home Building Proceedings / Decision on Costs After Consent Orders
Outcome
Costs application allowed.
Legal Topics
['costs in Tribunal Proceedings' 'party Party Costs' 'calderbank Offers' 'statutory Warranties' 'building Defects' 'encroachment on Easement']
['civil Procedure' 'home Building' 'costs'] ['costs in Tribunal Proceedings' 'party Party Costs' 'calderbank Offers' 'statutory Warranties' 'building Defects' 'encroachment on Easement']

Case Brief

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Procedural Posture

Costs Application in Home Building Proceedings / Decision on Costs After Consent Orders

Legal Issues

  1. 1 ['Whether the applicants should receive a costs order under section 53 of the Consumer Trader and Tenancy Tribunal Act 2001 and Regulation 20.' 'Whether the applicants unreasonably maintained a demolition and rebuild claim relating to the encroachment issue after steps were taken to obtain a partial release of the easement.' 'Whether rejection of Calderbank offers justified depriving the applicants of costs or limiting their costs.']

Ratio Decidendi

The applicants were wholly successful and it was reasonable for them to maintain all issues, including the encroachment issue, until council confirmation of the easement was obtained on 24 March 2014. The remaining defect issues properly remained for hearing, and the applicants' rejection of the respondent's Calderbank offer was not unreasonable or delinquent. There was therefore no sufficient basis to depart from the ordinary costs order in favour of the successful parties.

Court Disposition

Costs application allowed.

Orders

  • ["The respondent shall pay the applicant's costs of the proceedings on a party party basis as agreed or assessed."]