Bartel v Ryan (No 2) [2018] NSWCATAP 263

Bartel v Ryan (No 2) [2018] NSWCATAP 263

Rules 38 and 38A, not the special-circumstances test in s 60 relied on by the Builder, governed the appeal costs discretion because the underlying Consumer and Commercial Division proceedings involved amounts exceeding the relevant thresholds. The Homeowner was entirely successful on the appeal and the Builder identified no matter justifying departure from the usual position that costs follow the event. Although aspects of the Builder's conduct disadvantaged the Homeowner and the appeal lacked merit, the absence of prior notice that indemnity costs would be sought, such as by a Calderbank offer or letter, meant no sufficient basis for indemnity costs was established. The appropriate order...

Jurisdiction
Australia
Judgment Date
08 November 2018
Procedural Posture
Internal Appeal Costs Decision / After Dismissal of Appeal; Determination of Costs on the Papers
Outcome
The appellant was ordered to pay the respondent's costs of the appeal as agreed or assessed; indemnity costs and a fixed lump sum were not ordered.
Legal Topics
['costs in Internal Appeals' 'costs Discretion' 'indemnity Costs' 'lump Sum Costs Orders' 'ncat Consumer and Commercial Division']
['civil Procedure' 'costs' 'consumer and Commercial Proceedings'] ['costs in Internal Appeals' 'costs Discretion' 'indemnity Costs' 'lump Sum Costs Orders' 'ncat Consumer and Commercial Division']

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

Internal Appeal Costs Decision / After Dismissal of Appeal; Determination of Costs on the Papers

Legal Issues

  1. 1 ["Whether the appellant should pay the respondent's costs of the appeal." 'Whether costs should be awarded on an indemnity basis and in the lump sum of $26,925.45.' 'Whether s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) or rr 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) governed the costs discretion.']

Ratio Decidendi

Rules 38 and 38A, not the special-circumstances test in s 60 relied on by the Builder, governed the appeal costs discretion because the underlying Consumer and Commercial Division proceedings involved amounts exceeding the relevant thresholds. The Homeowner was entirely successful on the appeal and the Builder identified no matter justifying departure from the usual position that costs follow the event. Although aspects of the Builder's conduct disadvantaged the Homeowner and the appeal lacked merit, the absence of prior notice that indemnity costs would be sought, such as by a Calderbank offer or letter, meant no sufficient basis for indemnity costs was established. The appropriate order...

Court Disposition

The appellant was ordered to pay the respondent's costs of the appeal as agreed or assessed; indemnity costs and a fixed lump sum were not ordered.

Orders

  • ['The hearing is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).' 'The applicant is to pay the costs of the respondent, as agreed or assessed.']