Bulloch v Linden Building Services Pty Ltd t/as Linden Constructions [2019] NSWCATAP 42

Bulloch v Linden Building Services Pty Ltd t/as Linden Constructions [2019] NSWCATAP 42

The Appeal Panel held that the homeowners did not demonstrate any error of law or House v The King error in the Senior Member's discretionary costs decision. The mere fact that consent orders were entered into, even with an agreed scope of works, did not establish that the homeowners were almost certain to have succeeded if the matter had gone to hearing, particularly where the orders were without admission of liability and evidence had not been heard or tested. The appeal was therefore dismissed, and the respondent was entitled to its appeal costs under r 38A of the NCAT Rules.

Jurisdiction
Australia
Judgment Date
15 February 2019
Procedural Posture
Internal Appeal From a Costs Decision in Home Building Proceedings / Appeal Panel Decision on Appeal From the Consumer and Commercial Division
Outcome
The appeal is dismissed.
Legal Topics
['discretionary Costs Orders' 'settled Proceedings' 'consent Orders Without Admission of Liability' 'whether a Party Was Almost Certain to Have Succeeded' 'house V the King Error']
['civil Procedure' 'costs' 'home Building' 'tribunal Appeals'] ['discretionary Costs Orders' 'settled Proceedings' 'consent Orders Without Admission of Liability' 'whether a Party Was Almost Certain to Have Succeeded' 'house V the King Error']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Internal Appeal From a Costs Decision in Home Building Proceedings / Appeal Panel Decision on Appeal From the Consumer and Commercial Division

Legal Issues

  1. 1 ["Whether the Senior Member erred in exercising the discretion to dismiss both parties' costs applications after the substantive proceedings settled before hearing." 'Whether the consent orders and expert conclave material established that the homeowners were almost certain to have succeeded if the matter had proceeded to hearing.' 'Whether an error of law or House v The King error was demonstrated in the costs decision.']

Ratio Decidendi

The Appeal Panel held that the homeowners did not demonstrate any error of law or House v The King error in the Senior Member's discretionary costs decision. The mere fact that consent orders were entered into, even with an agreed scope of works, did not establish that the homeowners were almost certain to have succeeded if the matter had gone to hearing, particularly where the orders were without admission of liability and evidence had not been heard or tested. The appeal was therefore dismissed, and the respondent was entitled to its appeal costs under r 38A of the NCAT Rules.

Court Disposition

The appeal is dismissed.

Orders

  • ['The appeal is dismissed.' "The appellant is to pay the respondent's costs of the appeal as agreed or assessed."]