MDR Design and Construction Pty Ltd v Ferguson (No 2) [2024] NSWCATAP 81

MDR Design and Construction Pty Ltd v Ferguson (No 2) [2024] NSWCATAP 81

The Builder was successful on the appeal and the appeal was a separate event for costs purposes, so costs should follow the event on appeal. Although the Builder's late service of the voluminous Appeal Book was unsatisfactory and disentitling, justifying a reduction, the respondents were on notice of the issues raised by the appeal and there was no sufficient basis to make costs depend on the ultimate outcome of the remitted proceedings or to remit the appeal costs question. The appropriate order was that the respondents pay one-half of the appellant's costs of the appeal as assessed or agreed.

Jurisdiction
Australia
Judgment Date
13 May 2024
Procedural Posture
Appeal Panel Costs Decision in a Home Building Appeal / Determination on the Papers of Costs of the Appeal After the Substantive Appeal Was Allowed in Part and an Issue Remitted for Redetermination
Outcome
The respondents were ordered to pay one-half of the appellant's costs of the appeal as assessed or agreed.
Legal Topics
['costs of Appeal' 'costs Following the Event' 'disentitling Conduct' 'remitter' 'civil and Administrative Tribunal Rules 2014 Rr 38 and 38 A']
['civil Procedure' 'costs' 'home Building'] ['costs of Appeal' 'costs Following the Event' 'disentitling Conduct' 'remitter' 'civil and Administrative Tribunal Rules 2014 Rr 38 and 38 A']

Case Brief

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Procedural Posture

Appeal Panel Costs Decision in a Home Building Appeal / Determination on the Papers of Costs of the Appeal After the Substantive Appeal Was Allowed in Part and an Issue Remitted for Redetermination

Legal Issues

  1. 1 ["Whether the respondents should pay one-half of the appellant's costs of the appeal as assessed or agreed." 'Whether the costs of the appeal should instead be costs in the eventual cause or be remitted to the Tribunal for determination after the remitted issue was determined.' "Whether the appellant's late service of the voluminous Appeal Book justified limiting its costs recovery."]

Ratio Decidendi

The Builder was successful on the appeal and the appeal was a separate event for costs purposes, so costs should follow the event on appeal. Although the Builder's late service of the voluminous Appeal Book was unsatisfactory and disentitling, justifying a reduction, the respondents were on notice of the issues raised by the appeal and there was no sufficient basis to make costs depend on the ultimate outcome of the remitted proceedings or to remit the appeal costs question. The appropriate order was that the respondents pay one-half of the appellant's costs of the appeal as assessed or agreed.

Court Disposition

The respondents were ordered to pay one-half of the appellant's costs of the appeal as assessed or agreed.

Orders

  • ["The respondents shall pay one-half of the appellant's costs of the appeal as assessed or agreed."]