Jones v Mega Awesome Kapow Constructions Pty Ltd (No. 2) [2024] NSWCATAP 184

Jones v Mega Awesome Kapow Constructions Pty Ltd (No. 2) [2024] NSWCATAP 184

The January 2023 settlement offer made by the homeowner was a valid Calderbank offer which the builder unreasonably failed to accept, and after appeal the builder ended up materially worse off than if it had accepted the offer. The costs order below must be set aside and costs apportioned so that up to 18 January 2023 the builder is entitled to costs on the ordinary basis, and from 19 January 2023 the homeowner is entitled to indemnity costs. The builder must also pay the homeowner's costs of the appeals, with indemnity costs for the withdrawn builder's appeal and ordinary basis for the successful homeowner's appeal; these outcomes are justified to compensate for wasted costs and to...

Parties
Appellant: Peter Jones; Respondent: Mega Awesome Kapow Constructions Pty Ltd
Jurisdiction
Australia
Judgment Date
24 September 2024
Procedural Posture
Appeal / Post Appeal Decision on Costs
Outcome
appeal on costs allowed in part; original costs order set aside and substituted
Legal Topics
Calderbank Offers, Indemnity Costs, Quantum Meruit, Apportionment of Costs
Costs Appeal Home Building Calderbank Offers Indemnity Costs Quantum Meruit Apportionment of Costs

Case Brief

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Parties

Peter Jones

Appellant

Mega Awesome Kapow Constructions Pty Ltd

Respondent

Procedural Posture

Appeal / Post Appeal Decision on Costs

Legal Issues

  1. 1 Whether costs should be awarded to the parties and on what basis for the builder's appeal, the homeowner's appeal, and the original proceedings
  2. 2 Whether settlement offers (Calderbank offers) affect entitlement to indemnity costs
  3. 3 Whether the costs order of 19 December 2023 should be set aside

Ratio Decidendi

The January 2023 settlement offer made by the homeowner was a valid Calderbank offer which the builder unreasonably failed to accept, and after appeal the builder ended up materially worse off than if it had accepted the offer. The costs order below must be set aside and costs apportioned so that up to 18 January 2023 the builder is entitled to costs on the ordinary basis, and from 19 January 2023 the homeowner is entitled to indemnity costs. The builder must also pay the homeowner's costs of the appeals, with indemnity costs for the withdrawn builder's appeal and ordinary basis for the successful homeowner's appeal; these outcomes are justified to compensate for wasted costs and to...

Court Disposition

appeal on costs allowed in part; original costs order set aside and substituted

Orders

  • A hearing on the questions relating to costs is dispensed with.
  • The builder shall pay the homeowner's cost of the builder's appeal in matter number 2023/00347930 on an indemnity basis.