John Dawson v Steve Rosskelly and Sue Rosskelly t/as N & S Constructions [2014] NSWCATCD 78

John Dawson v Steve Rosskelly and Sue Rosskelly t/as N & S Constructions [2014] NSWCATCD 78

Where an applicant in building litigation over $30,000 unreasonably rejects offers of compromise that were more favourable in monetary and overall terms than the eventual outcome, and where the respondents made repeated genuine settlement attempts, the appropriate exercise of the Tribunal's costs discretion is to award costs against the applicant on an indemnity basis for the relevant period, while otherwise following specific statutory provisions and dividing costs orders accordingly.

Parties
Applicant: John Dawson; Respondents: Steve Rosskelly and Sue Rosskelly t/as N & S Constructions
Jurisdiction
Australia
Judgment Date
16 May 2014
Procedural Posture
Civil Building Defects/costs Dispute / Determination of Costs Following Substantive Decision and Remitter From District Court
Outcome
Partial costs orders: Respondents to pay applicant's costs of HB08/13255 as agreed or assessed; applicant to pay respondents' costs indemnity basis for certain period; each party to bear own costs for later period; no order as to certain early costs.
Legal Topics
Costs, Calderbank Offers, Costs Entitlement, Building Defects, Offers of Compromise
Civil Procedure Building and Construction Law Costs Calderbank Offers Costs Entitlement Building Defects Offers of Compromise

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Parties

John Dawson

Applicant

Steve Rosskelly and Sue Rosskelly t/as N & S Constructions

Respondents

Procedural Posture

Civil Building Defects/costs Dispute / Determination of Costs Following Substantive Decision and Remitter From District Court

Legal Issues

  1. 1 Whether the applicant or respondents are entitled to costs and on what basis given various Calderbank offers and litigation conduct; How to apply section 53 of the Consumer Trader and Tenancy Tribunal Act 2001 and clause 20 of the Consumer Trader and Tenancy Tribunal Regulation 2009 in the context of building disputes with claims exceeding $30,000; Whether offers made by the respondents triggered indemnity costs consequences due to their rejection by the applicant

Ratio Decidendi

Where an applicant in building litigation over $30,000 unreasonably rejects offers of compromise that were more favourable in monetary and overall terms than the eventual outcome, and where the respondents made repeated genuine settlement attempts, the appropriate exercise of the Tribunal's costs discretion is to award costs against the applicant on an indemnity basis for the relevant period, while otherwise following specific statutory provisions and dividing costs orders accordingly.

Court Disposition

Partial costs orders: Respondents to pay applicant's costs of HB08/13255 as agreed or assessed; applicant to pay respondents' costs indemnity basis for certain period; each party to bear own costs for later period; no order as to certain early costs.

Orders

  • The respondents are to pay the applicant's costs of HB08/13255 as agreed or assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 (NSW).
  • The applicant is to pay the respondents' costs as agreed or assessed on an indemnity basis from 8 September 2007 to 21 July 2011.