Grace v Pepe [2018] NSWCATAP 19

Grace v Pepe [2018] NSWCATAP 19

There were errors of law in the Tribunal's costs decision, including inadequate reasons for discounting the impact of the builder's Calderbank offer and failing to properly consider the significance of monetary outcome to the parties' success in each of the consolidated proceedings. In HB10, the costs decision was correct and confirmed; in HB11, the order was set aside, with each party to bear their own costs.

Parties
Appellant: Sam Grace; Respondent: Anthony Pepe; Respondent: Sophia Pepe
Jurisdiction
Australia
Judgment Date
16 January 2018
Procedural Posture
Appeal / Appeal Panel Decision Following Appeal From Costs Orders of the Tribunal
Outcome
Appeal allowed in part
Legal Topics
Costs, Appeals, Procedural Fairness, Calderbank Offers, Building Dispute
Civil Procedure Building and Construction Law Costs Appeals Procedural Fairness Calderbank Offers Building Dispute

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Parties

Sam Grace

Appellant

Anthony Pepe

Respondent

Sophia Pepe

Respondent

Procedural Posture

Appeal / Appeal Panel Decision Following Appeal From Costs Orders of the Tribunal

Legal Issues

  1. 1 Whether the Tribunal erred in its costs decision by failing to consider procedural fairness and established legal principles, including the relevance and weight of Calderbank offers;
  2. 2 Whether there was an error of law in the method applied to assess the parties' success for the purposes of awarding costs;
  3. 3 Whether the Tribunal failed to provide adequate reasons or consider relevant submissions in the decision on costs

Ratio Decidendi

There were errors of law in the Tribunal's costs decision, including inadequate reasons for discounting the impact of the builder's Calderbank offer and failing to properly consider the significance of monetary outcome to the parties' success in each of the consolidated proceedings. In HB10, the costs decision was correct and confirmed; in HB11, the order was set aside, with each party to bear their own costs.

Court Disposition

Appeal allowed in part

Orders

  • Order 1 below is confirmed.
  • In HB10/51266 Order 2 of the Tribunal below is confirmed, subject to further assessment of the proportion of costs relating to each hearing.