Bourke v Wincrest Group Pty Ltd [2021] NSWCATCD 81

Bourke v Wincrest Group Pty Ltd [2021] NSWCATCD 81

Because rule 38 applied and the applicants were the successful parties, a costs order in their favour was appropriate without proof of special circumstances. However, their success was substantially less than the claim advanced, the builder succeeded on substantial issues that occupied much of the hearing, and the applicants filed evidence which they did not rely upon. Those factors justified discounting the costs order, but not to the 25% proposed by the builder because there was no evidence of a pre-hearing settlement offer and the applicants had to bring the proceedings to obtain relief. A specific order for costs of the circumstances giving rise to the proceedings was unnecessary...

Jurisdiction
Australia
Judgment Date
17 August 2021
Procedural Posture
Costs Application in Consumer and Commercial Division Home Building Proceedings / After Principal Decision; Determined on the Papers
Outcome
Costs application allowed in part; hearing on costs dispensed with and respondent ordered to pay 50% of the applicants' costs of and incidental to the proceedings as agreed or assessed.
Legal Topics
['costs Follow the Event' 'bullock Issue Based Discounting of Costs' 'renewal Application' 'defective Residential Building Work' 'determination on the Papers' 'reply Submissions Filed Without Leave']
['costs' 'home Building' 'tribunal Procedure'] ['costs Follow the Event' 'bullock Issue Based Discounting of Costs' 'renewal Application' 'defective Residential Building Work' 'determination on the Papers' 'reply Submissions Filed Without Leave']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Costs Application in Consumer and Commercial Division Home Building Proceedings / After Principal Decision; Determined on the Papers

Legal Issues

  1. 1 ['Whether the costs application could be determined on the papers without an oral hearing.' 'Whether the applicants should be granted leave to rely on submissions in reply filed without prior leave.' 'Whether rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) permitted a costs order without special circumstances.' "Whether the applicants' costs should be discounted because they succeeded only in part and the respondent succeeded on substantial issues." "Whether the applicants' costs should be discounted because of alleged disentitling conduct in filing evidence not relied upon." 'Whether the Tribunal should make a specific order for costs incurred in the circumstances giving rise to the proceedings.']

Ratio Decidendi

Because rule 38 applied and the applicants were the successful parties, a costs order in their favour was appropriate without proof of special circumstances. However, their success was substantially less than the claim advanced, the builder succeeded on substantial issues that occupied much of the hearing, and the applicants filed evidence which they did not rely upon. Those factors justified discounting the costs order, but not to the 25% proposed by the builder because there was no evidence of a pre-hearing settlement offer and the applicants had to bring the proceedings to obtain relief. A specific order for costs of the circumstances giving rise to the proceedings was unnecessary...

Court Disposition

Costs application allowed in part; hearing on costs dispensed with and respondent ordered to pay 50% of the applicants' costs of and incidental to the proceedings as agreed or assessed.

Orders

  • ['Pursuant to section 50(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), a hearing in respect of the costs of the proceedings is dispensed with.' "The respondent, Wincrest Group Pty Ltd is to pay 50% of the applicants' costs of and incidental to the proceedings as agreed or assessed."]