Syed v Metricon Homes Pty Ltd [2020] NSWCATAP 147

Syed v Metricon Homes Pty Ltd [2020] NSWCATAP 147

Because the amount in issue in the underlying proceedings exceeded $30,000, Rules 38 and 38A governed costs in the appeal. After the appellant withdrew the appeal and it was dismissed, the respondent was the successful party and there was no disentitling conduct or other circumstance justifying departure from the ordinary rule that costs follow the event. There was no sufficient evidentiary or statutory basis for an order against the appellant's former solicitors. Indemnity costs were refused because the respondent's offer depended on recovery of underlying proceeding costs that had not been agreed or assessed, so it was not shown with certainty to be a compromise justifying indemnity...

Jurisdiction
Australia
Judgment Date
21 July 2020
Procedural Posture
Internal Appeal Costs Application / Appeal Withdrawn and Dismissed; Costs Application Determined on the Papers
Outcome
The respondent was awarded its costs of the appeal on the ordinary basis; the applications for indemnity costs and for a costs order against the appellant's former solicitors were declined.
Legal Topics
['costs in Consumer and Commercial Division Proceedings' 'costs in Internal Appeals' 'withdrawal of Appeal' 'costs Follow the Event' 'indemnity Costs' 'costs Order Against Solicitors']
['costs' 'civil Procedure' 'home Building'] ['costs in Consumer and Commercial Division Proceedings' 'costs in Internal Appeals' 'withdrawal of Appeal' 'costs Follow the Event' 'indemnity Costs' 'costs Order Against Solicitors']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Internal Appeal Costs Application / Appeal Withdrawn and Dismissed; Costs Application Determined on the Papers

Legal Issues

  1. 1 ['Whether the respondent should receive its costs of the withdrawn appeal under Rules 38 and 38A of the Civil and Administrative Tribunal Rules.' 'Whether the ordinary rule that costs follow the event should be displaced.' "Whether costs should be ordered against the appellant's former solicitors." 'Whether the respondent should receive indemnity costs based on its offer of 19 May 2020.' 'Whether the Tribunal should fix the amount of costs or leave them to assessment in default of agreement.']

Ratio Decidendi

Because the amount in issue in the underlying proceedings exceeded $30,000, Rules 38 and 38A governed costs in the appeal. After the appellant withdrew the appeal and it was dismissed, the respondent was the successful party and there was no disentitling conduct or other circumstance justifying departure from the ordinary rule that costs follow the event. There was no sufficient evidentiary or statutory basis for an order against the appellant's former solicitors. Indemnity costs were refused because the respondent's offer depended on recovery of underlying proceeding costs that had not been agreed or assessed, so it was not shown with certainty to be a compromise justifying indemnity...

Court Disposition

The respondent was awarded its costs of the appeal on the ordinary basis; the applications for indemnity costs and for a costs order against the appellant's former solicitors were declined.

Orders

  • ['The appellant is to pay the costs of the respondent of these appeal proceedings in an amount 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 in default of agreement.']