Roseland Projects Pty Ltd v Jiadong Yang [2020] NSWCATAP 45

Roseland Projects Pty Ltd v Jiadong Yang [2020] NSWCATAP 45

Leave to appeal was refused and the appeal dismissed because the Tribunal identified and applied the correct costs provisions, considered the parties' submissions and the builder's Calderbank offer, and made findings open on the evidence. The builder did not obtain a result more favourable than its offer, the owner...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
13 March 2020
Procedural Posture
Internal Appeal From a Consumer and Commercial Division Home Building Decision Concerning Costs / Appeal Panel; Leave to Appeal Sought
Outcome
Leave to appeal refused; appeal dismissed; appellant to pay respondent's costs of the appeal on the ordinary basis subject to any application for a different costs order.
Legal Topics
['leave to Appeal' 'exercise of Costs Discretion' 'costs to Follow the Event' 'calderbank Offer' 'statutory Warranties Under the Home Building Act 1989 (nsw)']
['civil Procedure' 'costs' 'home Building'] ['leave to Appeal' 'exercise of Costs Discretion' 'costs to Follow the Event' 'calderbank Offer' 'statutory Warranties Under the Home Building Act 1989 (nsw)']

Source-derived case record

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Procedural Posture

Internal Appeal From a Consumer and Commercial Division Home Building Decision Concerning Costs / Appeal Panel; Leave to Appeal Sought

Legal Issues

  1. 1 ['Whether the Tribunal erred in exercising its discretion to make no order as to costs in the Consumer and Commercial Division proceedings.' 'Whether leave to appeal should be granted on the basis of a substantial miscarriage of justice.' 'Whether the respondent should receive costs of the appeal.']

Ratio Decidendi

Leave to appeal was refused and the appeal dismissed because the Tribunal identified and applied the correct costs provisions, considered the parties' submissions and the builder's Calderbank offer, and made findings open on the evidence. The builder did not obtain a result more favourable than its offer, the owner obtained damages for breach of statutory warranty, and the builder did not establish an error of law or any substantial miscarriage of justice in the Tribunal's decision to make no order as to costs.

Court Disposition

Leave to appeal refused; appeal dismissed; appellant to pay respondent's costs of the appeal on the ordinary basis subject to any application for a different costs order.

Orders

  • ['Leave to appeal is refused.' 'The appeal is dismissed.' "Subject to order 4 below, the appellant is to pay the respondent's costs of the appeal, on the ordinary basis, as agreed or assessed." 'Order 3 above ceases to have effect if either party contends for a different costs order, in which case the party seeking...