John McDonald Building Services Pty Limited v Gusa (No 2) [2022] NSWCATAP 273

John McDonald Building Services Pty Limited v Gusa (No 2) [2022] NSWCATAP 273

Because both parties had mixed success on appeal and at first instance, neither party acted unreasonably or unnecessarily prolonged the proceedings, the settlement of the remitted ACL claims did not justify adverse inferences, and the practical outcome did not favour either party overall, the proper exercise of the costs discretion was that each party bear its own costs of the first instance proceedings and the appeal.

Jurisdiction
Australia
Judgment Date
19 August 2022
Procedural Posture
Costs Application in NCAT Appeal Panel Proceedings / On the Papers After the Appeal Was Allowed in Part and Costs of the Appeal and First Instance Proceedings Were Reserved
Outcome
Hearing dispensed with; each party to bear its own costs of the proceedings at first instance and of the appeal.
Legal Topics
['costs After Mixed Success' 'proportional Costs Orders' 'costs of Appeal Proceedings' 'costs of First Instance Proceedings After Appeal' 'costs Where Remitted Proceedings Settled' 'australian Consumer Law Claims' 'money Order and Work Order for Rectification Works']
['costs' 'civil Procedure' 'consumer Law'] ['costs After Mixed Success' 'proportional Costs Orders' 'costs of Appeal Proceedings' 'costs of First Instance Proceedings After Appeal' 'costs Where Remitted Proceedings Settled' 'australian Consumer Law Claims' 'money Order and Work Order for Rectification Works']

Case Brief

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Procedural Posture

Costs Application in NCAT Appeal Panel Proceedings / On the Papers After the Appeal Was Allowed in Part and Costs of the Appeal and First Instance Proceedings Were Reserved

Legal Issues

  1. 1 ['Whether the Appeal Panel should dispense with a hearing and determine the costs applications on the papers.' 'Whether the Builder or the Homeowners should be awarded costs of the appeal.' 'Whether either party should be awarded costs of the proceedings at first instance after the first instance costs orders were set aside.' "Whether a proportional costs order should be made having regard to the parties' mixed success." 'What effect, if any, the settlement of the remitted ACL claims without costs should have on the costs applications.']

Ratio Decidendi

Because both parties had mixed success on appeal and at first instance, neither party acted unreasonably or unnecessarily prolonged the proceedings, the settlement of the remitted ACL claims did not justify adverse inferences, and the practical outcome did not favour either party overall, the proper exercise of the costs discretion was that each party bear its own costs of the first instance proceedings and the appeal.

Court Disposition

Hearing dispensed with; each party to bear its own costs of the proceedings at first instance and of the appeal.

Orders

  • ['Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) the Appeal Panel dispenses with a hearing of these proceedings.' 'The parties bear their own costs of the proceedings at first instance and of the appeal.']