Gassman & Anor v Peck [2017] NSWCATAP 66

Gassman & Anor v Peck [2017] NSWCATAP 66

The Tribunal erred in law by treating the absence of a hearing as preventing it from deciding whether the owners were almost certain to have succeeded or whether Mr Peck had effectively surrendered. On reconsideration, the Appeal Panel found that Mr Peck's conduct unnecessarily disadvantaged the owners and prolonged the proceedings, that the owners were almost certain to have succeeded, and that Mr Peck effectively surrendered to the owners' claims. Those matters warranted an order that Mr Peck pay the owners' costs of the first-instance proceedings, reduced by $500.00 for costs caused by the owners' own defaults, and their costs of the appeal.

Jurisdiction
Australia
Judgment Date
29 March 2017
Procedural Posture
Internal Appeal in a Home Building Costs Matter / Appeal Panel Appeal From a Consumer and Commercial Division Costs Decision Dated 20 May 2016
Outcome
Appeal allowed; first-instance no-costs order set aside; respondent ordered to pay the appellants' costs of the proceedings less $500.00 and the appellants' costs of the appeal.
Legal Topics
['costs in NCAT Consumer and Commercial Division Proceedings' 'appeal on Question of Law' 'special Circumstances Warranting Costs' 'costs After Settlement Without Hearing' 'home Building Rectification Claim']
['costs' 'civil Procedure' 'home Building'] ['costs in NCAT Consumer and Commercial Division Proceedings' 'appeal on Question of Law' 'special Circumstances Warranting Costs' 'costs After Settlement Without Hearing' 'home Building Rectification Claim']

Case Brief

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Procedural Posture

Internal Appeal in a Home Building Costs Matter / Appeal Panel Appeal From a Consumer and Commercial Division Costs Decision Dated 20 May 2016

Legal Issues

  1. 1 ['Whether the Tribunal erred by declining to determine whether the owners were almost certain to have succeeded where the proceedings settled without a hearing.' "Whether the Tribunal erred by declining to determine whether Mr Peck had effectively surrendered to the owners' claim." "Whether Mr Peck's conduct constituted circumstances warranting a costs order in favour of the owners." "Whether the owners' conduct warranted a reduction from any costs order." "Whether Mr Peck should pay the owners' costs of the appeal."]

Ratio Decidendi

The Tribunal erred in law by treating the absence of a hearing as preventing it from deciding whether the owners were almost certain to have succeeded or whether Mr Peck had effectively surrendered. On reconsideration, the Appeal Panel found that Mr Peck's conduct unnecessarily disadvantaged the owners and prolonged the proceedings, that the owners were almost certain to have succeeded, and that Mr Peck effectively surrendered to the owners' claims. Those matters warranted an order that Mr Peck pay the owners' costs of the first-instance proceedings, reduced by $500.00 for costs caused by the owners' own defaults, and their costs of the appeal.

Court Disposition

Appeal allowed; first-instance no-costs order set aside; respondent ordered to pay the appellants' costs of the proceedings less $500.00 and the appellants' costs of the appeal.

Orders

  • ['The appeal is allowed.' 'The order of the Tribunal of 20 May 2016 that "Each party is to bear its own costs" is set aside.' 'The respondent to the appeal, Nathan Peck, must pay the costs of the appellants Peter Gassman and Beth Roddy in proceedings HB 14/17549 in the Consumer and Commercial Division of the...