Lama v Roselands Services Pty Ltd (No. 2) [2021] NSWCATCD 53

Lama v Roselands Services Pty Ltd (No. 2) [2021] NSWCATCD 53

Rule 38 applied because the proceedings were allocated to the Consumer and Commercial Division and the amount claimed or in dispute in each proceeding exceeded $30,000, so no finding of special circumstances was required. The applicants were successful and entitled to ordinary costs. The 13 December 2019 offer was not an effective Calderbank offer because it was a commercial proposal for a new contract and it was not possible to assess whether the applicants obtained a better outcome. The 30 March 2020 offer was a genuine offer of compromise, the applicants obtained a better outcome than the offer, and rejection was unreasonable given the respondent's lack of evidence, reliance on legal...

Jurisdiction
Australia
Judgment Date
12 February 2021
Procedural Posture
Costs Application in Consumer and Commercial Division Home Building Proceedings / Heard on the Papers After the Applicants Were Successful in HB 19/36627 and HB 20/19310
Outcome
Costs awarded to the applicants; hearing on costs dispensed with.
Legal Topics
['calderbank Offer' 'indemnity Costs' 'ordinary Costs' 'ncat Costs Jurisdiction' 'consumer and Commercial Division']
['civil Procedure' 'costs' 'home Building'] ['calderbank Offer' 'indemnity Costs' 'ordinary Costs' 'ncat Costs Jurisdiction' 'consumer and Commercial Division']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Costs Application in Consumer and Commercial Division Home Building Proceedings / Heard on the Papers After the Applicants Were Successful in HB 19/36627 and HB 20/19310

Legal Issues

  1. 1 ['Whether a hearing on costs should be dispensed with.' 'Whether the Tribunal could award costs without finding special circumstances because Rule 38 of the Civil and Administrative Tribunal Rules 2014 applied.' 'Whether the applicants were entitled to costs on the ordinary basis as successful parties.' "Whether the applicants' offers dated 13 December 2019 and 30 March 2020 justified an order for indemnity costs." 'Whether it was unreasonable for the respondent not to accept the 30 March 2020 offer.']

Ratio Decidendi

Rule 38 applied because the proceedings were allocated to the Consumer and Commercial Division and the amount claimed or in dispute in each proceeding exceeded $30,000, so no finding of special circumstances was required. The applicants were successful and entitled to ordinary costs. The 13 December 2019 offer was not an effective Calderbank offer because it was a commercial proposal for a new contract and it was not possible to assess whether the applicants obtained a better outcome. The 30 March 2020 offer was a genuine offer of compromise, the applicants obtained a better outcome than the offer, and rejection was unreasonable given the respondent's lack of evidence, reliance on legal...

Court Disposition

Costs awarded to the applicants; hearing on costs dispensed with.

Orders

  • ['A hearing on costs is dispensed with pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013.' "Roselands Services Pty Ltd must pay Sameer Lama and Sirjana Lama's costs of and incidental to HB 20/19310 on the ordinary basis, such costs if not agreed to be assessed on the basis set out in the...