Day v Quince’s Quality Building Services Pty Ltd (No 2) [2021] NSWCATAP 373

Day v Quince’s Quality Building Services Pty Ltd (No 2) [2021] NSWCATAP 373

The proceedings should be remitted for redetermination of all issues, not limited to those raised in appeal, as the Tribunal's errors affected both liability and quantum; costs should follow the event, and the respondent should pay the appellants' costs of the appeal; there should be no order as to costs at first instance.

Parties
First Appellant: Aron Day; Second Appellant: Claire Day; Respondent: Quince's Quality Building Services Pty Ltd
Jurisdiction
Australia
Judgment Date
19 November 2021
Procedural Posture
Appeal / Decision on Remitter and Costs After Successful Appeal
Outcome
Appeal allowed (previously), proceedings remitted, costs of appeal to appellants, no order as to costs at first instance.
Legal Topics
Discretion to Award Costs, Remittal of Proceedings, General Rule on Party Costs, Appeal Grounds, Consumer and Commercial Claims
Civil Procedure Costs Discretion to Award Costs Remittal of Proceedings General Rule on Party Costs Appeal Grounds Consumer and Commercial Claims

Case Brief

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Parties

Aron Day

First Appellant

Claire Day

Second Appellant

Quince's Quality Building Services Pty Ltd

Respondent

Procedural Posture

Appeal / Decision on Remitter and Costs After Successful Appeal

Legal Issues

  1. 1 Whether the proceedings should be remitted for redetermination on all issues or limited issues
  2. 2 Whether the successful appellant is entitled to its costs of the appeal
  3. 3 Whether there should be an order as to costs at first instance

Ratio Decidendi

The proceedings should be remitted for redetermination of all issues, not limited to those raised in appeal, as the Tribunal's errors affected both liability and quantum; costs should follow the event, and the respondent should pay the appellants' costs of the appeal; there should be no order as to costs at first instance.

Court Disposition

Appeal allowed (previously), proceedings remitted, costs of appeal to appellants, no order as to costs at first instance.

Orders

  • The proceedings be remitted to the Consumer and Commercial Division of the Tribunal for redetermination in accordance with these reasons.
  • The respondent pay the appellants' costs of the appeal as agreed or as assessed.