OWNERS SP 92648 v BINAH CONSTRUCTIONS PL & ANOR [2021] NSWCATAP 68

OWNERS SP 92648 v BINAH CONSTRUCTIONS PL & ANOR [2021] NSWCATAP 68

The Appeal Panel held that the primary Tribunal erred in law by not stating and applying the correct legal principles concerning costs orders following a consent transfer, and by not providing adequate reasons justifying the departure from the usual position that each party bears their own costs in such circumstances. The absence of sufficient basis to depart from this position or to justify awarding costs against the appellant resulted in the costs order being set aside and substituted with no order as to costs in the Tribunal, except for expert evidence subsequently relied upon in proceedings.

Jurisdiction
Australia
Judgment Date
22 March 2021
Procedural Posture
Appeal / Decision of Appeal Panel on Appeal From Costs Order of Consumer and Commercial Division
Outcome
Appeal allowed. Leave to appeal granted to the extent required.
Legal Topics
['costs' 'consent Orders' 'jurisdiction' 'appeals']
['building and Construction Law' 'civil Procedure'] ['costs' 'consent Orders' 'jurisdiction' 'appeals']

Case Brief

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Procedural Posture

Appeal / Decision of Appeal Panel on Appeal From Costs Order of Consumer and Commercial Division

Legal Issues

  1. 1 ['Whether costs order was appropriate on consent transfer to Supreme Court' 'Whether Tribunal erred in awarding costs against appellant who consented to transfer' 'Whether Tribunal erred in awarding costs to second respondent who did not participate' 'Whether failure to state and apply correct legal principles regarding costs on consent transfer amounts to error of law']

Ratio Decidendi

The Appeal Panel held that the primary Tribunal erred in law by not stating and applying the correct legal principles concerning costs orders following a consent transfer, and by not providing adequate reasons justifying the departure from the usual position that each party bears their own costs in such circumstances. The absence of sufficient basis to depart from this position or to justify awarding costs against the appellant resulted in the costs order being set aside and substituted with no order as to costs in the Tribunal, except for expert evidence subsequently relied upon in proceedings.

Court Disposition

Appeal allowed. Leave to appeal granted to the extent required.

Orders

  • ['Leave to appeal is granted, to the extent that leave is required.' 'The appeal is allowed.' 'In substitution for Order 2 made by the Tribunal in HB 20/26227 on 16 November 2020, order that there be no order as to the costs of the proceedings in the Tribunal, including the costs of and incidental to the application...