Lukas trading as Stone Obsessions NSW v Carstens [2021] NSWCATAP 320

Lukas trading as Stone Obsessions NSW v Carstens [2021] NSWCATAP 320

The costs issue could be determined on the papers because both parties had the opportunity to object and no objections were received. Rule 38(2)(b) applied because the appeal concerned an order requiring a certificate of insurance under the Home Building Compensation Fund in the sum of $40,000, arising in the context of a $69,250.00 building defects claim, so more than $30,000 was realistically at stake. The appellant commenced the appeal more than two years after the original order and withdrew it five weeks later, causing the respondents to incur legal costs that were thrown away. The respondents were therefore entitled to party/party costs. A lump sum order was appropriate, but the...

Jurisdiction
Australia
Judgment Date
20 October 2021
Procedural Posture
Internal Appeal Costs Application / Costs Determination on the Papers After Withdrawal and Dismissal of Appeal
Outcome
Respondents awarded fixed costs of the withdrawn appeal; hearing dispensed with.
Legal Topics
['fixed Costs Order' 'lump Sum Costs Order' 'internal Appeal' 'withdrawal of Appeal' 'dispensing With Hearing' 'reasonableness of Legal Costs']
['costs' 'civil Procedure' 'consumer and Commercial' 'home Building'] ['fixed Costs Order' 'lump Sum Costs Order' 'internal Appeal' 'withdrawal of Appeal' 'dispensing With Hearing' 'reasonableness of Legal Costs']

Case Brief

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Procedural Posture

Internal Appeal Costs Application / Costs Determination on the Papers After Withdrawal and Dismissal of Appeal

Legal Issues

  1. 1 ['Whether the costs issue could be determined without a hearing under s 50(2) of the Civil and Administrative Tribunal Act 2013.' 'Whether the respondents were entitled to their costs of the withdrawn internal appeal.' 'Whether rule 38(2)(b) of the Civil and Administrative Tribunal Rules 2013 applied because more than $30,000 was realistically in dispute on the appeal.' "Whether the respondents' costs should be fixed as a lump sum and, if so, in what amount."]

Ratio Decidendi

The costs issue could be determined on the papers because both parties had the opportunity to object and no objections were received. Rule 38(2)(b) applied because the appeal concerned an order requiring a certificate of insurance under the Home Building Compensation Fund in the sum of $40,000, arising in the context of a $69,250.00 building defects claim, so more than $30,000 was realistically at stake. The appellant commenced the appeal more than two years after the original order and withdrew it five weeks later, causing the respondents to incur legal costs that were thrown away. The respondents were therefore entitled to party/party costs. A lump sum order was appropriate, but the...

Court Disposition

Respondents awarded fixed costs of the withdrawn appeal; hearing dispensed with.

Orders

  • ['A hearing of this proceeding is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013.' 'The appellant is to pay the respondents costs fixed at $4,065.48 within 28 days.']