Steward v McKay (No 2) [2019] NSWCATAP 5

Steward v McKay (No 2) [2019] NSWCATAP 5

Special circumstances warranting an award of costs were established because most appeal grounds were weak and the second, third, fourth and fifth grounds lacked substance, and because the appellant's conduct in filing voluminous irrelevant evidence caused the first respondent to incur costs that were neither necessary nor appropriate. The Calderbank offer did not support special circumstances because it related to the first instance Tribunal matter rather than the appeal. A lump sum costs order of $6,500 was fair and proportionate given the first respondent's actual party/party costs and the guiding principle.

Jurisdiction
Australia
Judgment Date
02 January 2019
Procedural Posture
Costs Decision in Appeal Panel Proceedings / After Refusal to Extend Time to File Notice of Appeal and Dismissal of Appeal
Outcome
Costs awarded to the first respondent against the appellant.
Legal Topics
['special Circumstances for Costs in Ncat' 'lump Sum Costs Order' 'appeal Costs' 'guiding Principle' 'calderbank Offer']
['civil Procedure' 'costs' 'administrative Law'] ['special Circumstances for Costs in Ncat' 'lump Sum Costs Order' 'appeal Costs' 'guiding Principle' 'calderbank Offer']

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 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs Decision in Appeal Panel Proceedings / After Refusal to Extend Time to File Notice of Appeal and Dismissal of Appeal

Legal Issues

  1. 1 ['Whether special circumstances warranted an award of costs under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW).' 'Whether the weakness or lack of substance of the appeal grounds supported a costs order.' "Whether the appellant's filing of voluminous irrelevant material and conduct of the appeal unnecessarily caused the first respondent to incur costs." 'Whether an unconditional Calderbank offer made before the first instance hearing supported an award of appeal costs.' 'Whether costs should be determined as a lump sum rather than assessed.']

Ratio Decidendi

Special circumstances warranting an award of costs were established because most appeal grounds were weak and the second, third, fourth and fifth grounds lacked substance, and because the appellant's conduct in filing voluminous irrelevant evidence caused the first respondent to incur costs that were neither necessary nor appropriate. The Calderbank offer did not support special circumstances because it related to the first instance Tribunal matter rather than the appeal. A lump sum costs order of $6,500 was fair and proportionate given the first respondent's actual party/party costs and the guiding principle.

Court Disposition

Costs awarded to the first respondent against the appellant.

Orders

  • ['On or before 29 January 2019, the appellant is to pay the first respondent the sum of $6,500 in respect of costs.']