Burgon v Oz Style Homes Pty Ltd [2021] NSWCATCD 41

Burgon v Oz Style Homes Pty Ltd [2021] NSWCATCD 41

Given the mixed outcome of the proceedings and having regard to the issues on which the applicants were both successful and unsuccessful, it is appropriate as a matter of discretion to award the applicants 50% of their costs. Neither Calderbank offer made by the respondent justifies an indemnity or no costs order in the respondent's favour because the applicants obtained a better result than the first offer and it was not unreasonable for them to refuse the second.

Jurisdiction
Australia
Judgment Date
01 July 2021
Procedural Posture
Costs Application / Post Hearing Determination of Costs
Outcome
Oz Style Homes Pty Ltd to pay 50% of Kylie Burgon and Christopher Burgon's costs; no hearing on costs; costs to be assessed if not agreed.
Legal Topics
['costs' 'mixed Outcome' 'calderbank Offers' 'home Building Dispute']
['civil Procedure'] ['costs' 'mixed Outcome' 'calderbank Offers' 'home Building Dispute']

Case Brief

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Procedural Posture

Costs Application / Post Hearing Determination of Costs

Legal Issues

  1. 1 ['Whether costs should be apportioned given a mixed outcome in the main proceedings' 'Whether Calderbank offers affect the allocation or quantum of costs']

Ratio Decidendi

Given the mixed outcome of the proceedings and having regard to the issues on which the applicants were both successful and unsuccessful, it is appropriate as a matter of discretion to award the applicants 50% of their costs. Neither Calderbank offer made by the respondent justifies an indemnity or no costs order in the respondent's favour because the applicants obtained a better result than the first offer and it was not unreasonable for them to refuse the second.

Court Disposition

Oz Style Homes Pty Ltd to pay 50% of Kylie Burgon and Christopher Burgon's costs; no hearing on costs; costs to be assessed if not agreed.

Orders

  • ['A hearing on costs is dispensed with pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013.' "Oz Style Homes Pty Ltd must pay 50% of Kylie Burgon and Christopher Burgon's costs of the proceedings, such costs if not agreed to be assessed in accordance with the Legal Profession Uniform Law...