Islam v Metricon Homes Pty Ltd [2018] NSWCATAP 116

Islam v Metricon Homes Pty Ltd [2018] NSWCATAP 116

The appeal was allowed in part because the Tribunal erred in making a gross sum costs order without sufficient evidentiary foundation or adequate reasons. Although the builder was entitled to ordinary basis costs because it was the successful party and r 38(2)(b) applied, the invoices and submissions did not provide a logical, fair and reasonable basis for fixing a gross sum, and the Tribunal's reliance on the quick, just and cheap resolution principle did not adequately explain the exercise of discretion. The appropriate substituted order was that the homeowners pay the builder's costs on the ordinary basis as agreed or as assessed.

Jurisdiction
Australia
Judgment Date
18 May 2018
Procedural Posture
Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 Against a Costs Decision in Home Building Act 1989 Proceedings / Appeal Panel Decision
Outcome
Appeal allowed in part; original costs order set aside and substituted with an order for ordinary basis costs as agreed or assessed; parties to pay their own appeal costs subject to any application for a different appeal costs order.
Legal Topics
['internal Appeal' 'gross Sum Costs Orders' 'ordinary Basis Costs' 'diversity Jurisdiction' 'costs Assessment']
['civil Procedure' 'costs' 'home Building' 'tribunal Jurisdiction'] ['internal Appeal' 'gross Sum Costs Orders' 'ordinary Basis Costs' 'diversity Jurisdiction' 'costs Assessment']

Case Brief

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Procedural Posture

Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 Against a Costs Decision in Home Building Act 1989 Proceedings / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the Tribunal had jurisdiction to hear and determine the substantive and costs applications and whether the Appeal Panel had jurisdiction to hear and determine the appeal.' 'On what basis the Tribunal could make an order for costs.' "Whether the Tribunal's decision to make a gross sum costs order gave rise to a question of law." 'Whether the homeowners established that they may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or against the weight of evidence.' 'If a question of law was established or leave to appeal should be granted, what orders should be made.']

Ratio Decidendi

The appeal was allowed in part because the Tribunal erred in making a gross sum costs order without sufficient evidentiary foundation or adequate reasons. Although the builder was entitled to ordinary basis costs because it was the successful party and r 38(2)(b) applied, the invoices and submissions did not provide a logical, fair and reasonable basis for fixing a gross sum, and the Tribunal's reliance on the quick, just and cheap resolution principle did not adequately explain the exercise of discretion. The appropriate substituted order was that the homeowners pay the builder's costs on the ordinary basis as agreed or as assessed.

Court Disposition

Appeal allowed in part; original costs order set aside and substituted with an order for ordinary basis costs as agreed or assessed; parties to pay their own appeal costs subject to any application for a different appeal costs order.

Orders

  • ['The appeal is allowed in part.' 'The order made by the Tribunal on 31 January 2018 in proceedings HB 16/37538 is set aside.' 'Tariqul Islam and Rashada Khatun are to pay the costs of Metricon Homes Pty Ltd on the ordinary basis as agreed or as assessed, in accordance with the Legal Profession Uniform Law...