Harris v Morabito Holdings Pty Limited [2018] NSWSC 1353

Harris v Morabito Holdings Pty Limited [2018] NSWSC 1353

The owners were entitled to costs because commencement and continuation in the Supreme Court were warranted when judged at the time of transfer from NCAT, given expert evidence valuing the claim at about $1.6 million. However, because the owners substantially overstated the claim and thereby increased the builder's costs, a broad-brush reduction was just, resulting in an award of 80% of their ordinary costs. Indemnity costs were refused because, when the Calderbank offer was made, the builder lacked points of claim and expert evidence and could not properly assess the offer, so rejection was not unreasonable.

Jurisdiction
Australia
Judgment Date
30 August 2018
Procedural Posture
Costs Application in Home Building Dispute / Costs Argument After Judgment Adopting Referee's Report With Exceptions and Entering Judgment for the Plaintiffs
Outcome
Defendant ordered to pay 80% of the plaintiffs' costs assessed on the ordinary basis, with interest on costs; indemnity costs refused; parties directed to bring in draft orders.
Legal Topics
['costs Following the Event' 'ucpr R 42.34' 'indemnity Costs' 'calderbank Offer' "referee's Report" 'expert Evidence' 'cross Claim']
['civil Procedure' 'costs' 'home Building'] ['costs Following the Event' 'ucpr R 42.34' 'indemnity Costs' 'calderbank Offer' "referee's Report" 'expert Evidence' 'cross Claim']

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

Costs Application in Home Building Dispute / Costs Argument After Judgment Adopting Referee's Report With Exceptions and Entering Judgment for the Plaintiffs

Legal Issues

  1. 1 ['Whether UCPR r 42.34 prevented a costs order because the plaintiffs obtained judgment for less than $500,000 in the Supreme Court.' "Whether the plaintiffs' costs should be reduced because their claim was substantially overstated and their expert evidence caused additional costs." 'Whether the plaintiffs should receive indemnity costs based on a Calderbank offer dated 27 October 2015.' 'Whether interest on costs should be awarded.']

Ratio Decidendi

The owners were entitled to costs because commencement and continuation in the Supreme Court were warranted when judged at the time of transfer from NCAT, given expert evidence valuing the claim at about $1.6 million. However, because the owners substantially overstated the claim and thereby increased the builder's costs, a broad-brush reduction was just, resulting in an award of 80% of their ordinary costs. Indemnity costs were refused because, when the Calderbank offer was made, the builder lacked points of claim and expert evidence and could not properly assess the offer, so rejection was not unreasonable.

Court Disposition

Defendant ordered to pay 80% of the plaintiffs' costs assessed on the ordinary basis, with interest on costs; indemnity costs refused; parties directed to bring in draft orders.

Orders

  • ["The defendant is to pay 80% of the plaintiffs' costs assessed on the ordinary basis." 'The plaintiffs are to have interest on costs on the Lahoud formula.' 'The cross-claim should be dismissed.' "The cross-claimant builder should pay the cross-defendant owners' costs of the cross-claim." 'The parties are to bring...