Wilson v Dash (No.2) [2018] NSWCATAP 155

Wilson v Dash (No.2) [2018] NSWCATAP 155

Because the appeal was an internal appeal from Consumer and Commercial Division proceedings in which the amounts claimed exceeded $30,000, r 38A required the Appeal Panel to apply r 38 rather than the special-circumstances test in s 60. The respondent was the successful party and was entitled to costs of the appeal on a party/party basis. However, the materials supporting the claimed gross sum lacked sufficient detail about the timing and nature of costs incurred, work done, hours, rates, counsel's work, other lawyers' rates and the amount likely to be recoverable on assessment, so a fixed costs order could not fairly be made with sufficient confidence. The costs application could be...

Jurisdiction
Australia
Judgment Date
27 June 2018
Procedural Posture
Costs Application in Internal Appeal / Appeal Panel, Decided on the Papers After Appeal Dismissed
Outcome
Respondent awarded costs of the appeal on a party/party basis; gross sum costs order not made; hearing dispensed with.
Legal Topics
['costs in Internal Appeals' 'gross Sum Costs Order' 'party/party Costs' 'assessment of Costs' 'dispensing With Hearing']
['civil Procedure' 'costs' 'consumer and Commercial' 'home Building'] ['costs in Internal Appeals' 'gross Sum Costs Order' 'party/party Costs' 'assessment of Costs' 'dispensing With Hearing']

Case Brief

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Procedural Posture

Costs Application in Internal Appeal / Appeal Panel, Decided on the Papers After Appeal Dismissed

Legal Issues

  1. 1 ['Whether the Appeal Panel should award the respondent costs of the appeal.' 'Whether the respondent should receive a gross sum costs order for all legal fees paid in connection with the appeal.' 'Whether the costs application could be determined on the papers without a hearing.' 'Whether correspondence concerning both first instance costs and appeal costs should affect determination of the appeal costs application.']

Ratio Decidendi

Because the appeal was an internal appeal from Consumer and Commercial Division proceedings in which the amounts claimed exceeded $30,000, r 38A required the Appeal Panel to apply r 38 rather than the special-circumstances test in s 60. The respondent was the successful party and was entitled to costs of the appeal on a party/party basis. However, the materials supporting the claimed gross sum lacked sufficient detail about the timing and nature of costs incurred, work done, hours, rates, counsel's work, other lawyers' rates and the amount likely to be recoverable on assessment, so a fixed costs order could not fairly be made with sufficient confidence. The costs application could be...

Court Disposition

Respondent awarded costs of the appeal on a party/party basis; gross sum costs order not made; hearing dispensed with.

Orders

  • ['A hearing in respect of this costs application is dispensed with under section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).' "The appellants must pay the respondent's costs of the appeal such costs if not agreed to be assessed on a party/party basis pursuant to the provisions of the Legal...