Tang v Mawad Group Pty Ltd (No 2) [2021] NSWCATAP 345

Tang v Mawad Group Pty Ltd (No 2) [2021] NSWCATAP 345

Although the making of the 13 January 2021 Offer and the 18 March 2021 Offer and the owners' non-acceptance of those offers were out of the ordinary and enlivened the costs discretion under s 60, the discretion should be exercised against awarding the builder costs after 16 March 2021. The builder already had the benefit of the 16 March 2021 Costs Order, the Amended Notice of Appeal filed on 23 March 2021 narrowed and changed the appeal, the offers did not address the amended appeal, non-acceptance of the 18 March 2021 Offer was not unreasonable in the circumstances, and the owners' weak arguments were not untenable or so weak as to justify an award of costs.

Jurisdiction
Australia
Judgment Date
09 November 2021
Procedural Posture
Costs Application in Appeal Panel Proceedings / Determination on the Papers After Dismissal of the Appeal and Dismissal of the Builder's Indemnity Costs Application
Outcome
The builder's application for costs of the appeal since 16 March 2021 was dismissed.
Legal Topics
['costs on Appeal' 'special Circumstances Under S 60 of the Civil and Administrative Tribunal Act 2013 (nsw)' 'calderbank Offers' 'discretion to Award Costs' 'dispensing With a Hearing']
['civil Procedure' 'costs' 'tribunal Proceedings'] ['costs on Appeal' 'special Circumstances Under S 60 of the Civil and Administrative Tribunal Act 2013 (nsw)' 'calderbank Offers' 'discretion to Award Costs' 'dispensing With a Hearing']

Case Brief

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Procedural Posture

Costs Application in Appeal Panel Proceedings / Determination on the Papers After Dismissal of the Appeal and Dismissal of the Builder's Indemnity Costs Application

Legal Issues

  1. 1 ['Whether a hearing on the question of costs should be dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).' "Whether special circumstances warranted an award of the builder's costs of the appeal incurred since 16 March 2021 under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW)." "Whether the owners' failure to accept the 13 January 2021 Offer or the 18 March 2021 Offer justified an award of costs after 16 March 2021." "Whether the weakness of the owners' appeal justified an award of costs."]

Ratio Decidendi

Although the making of the 13 January 2021 Offer and the 18 March 2021 Offer and the owners' non-acceptance of those offers were out of the ordinary and enlivened the costs discretion under s 60, the discretion should be exercised against awarding the builder costs after 16 March 2021. The builder already had the benefit of the 16 March 2021 Costs Order, the Amended Notice of Appeal filed on 23 March 2021 narrowed and changed the appeal, the offers did not address the amended appeal, non-acceptance of the 18 March 2021 Offer was not unreasonable in the circumstances, and the owners' weak arguments were not untenable or so weak as to justify an award of costs.

Court Disposition

The builder's application for costs of the appeal since 16 March 2021 was dismissed.

Orders

  • ['Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), dispense with a hearing on the question of costs.' "The builder's application for costs of the appeal since 16 March 2021 is dismissed."]