S&J Harris Building Services Pty Ltd v Jacques [2023] NSWCATAP 35

S&J Harris Building Services Pty Ltd v Jacques [2023] NSWCATAP 35

The Appeal Panel determined that in the Builder's application, the amount claimed and ultimately awarded exceeded $30,000, thus the correct rule was r 38, not s 60. Under r 38, costs generally follow the event, so the Builder was entitled to its costs. For the Homeowner's application, leave to appeal was refused as there was no error of law or procedural unfairness identified and the ordinary costs rule applied.

Jurisdiction
Australia
Judgment Date
08 February 2023
Procedural Posture
Internal Appeal From Costs Decision / Appeal Panel Decision
Outcome
Appeal allowed in relation to Builder's application; leave to appeal refused and appeal dismissed in relation to Homeowner's application.
Legal Topics
['costs' 'appeals' 'application of R 38 Civil and Administrative Tribunal Rules 2014 (nsw)' 'application of S 60 Civil and Administrative Tribunal Act 2013 (nsw)']
['civil Procedure' 'consumer and Commercial Law'] ['costs' 'appeals' 'application of R 38 Civil and Administrative Tribunal Rules 2014 (nsw)' 'application of S 60 Civil and Administrative Tribunal Act 2013 (nsw)']

Case Brief

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Procedural Posture

Internal Appeal From Costs Decision / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the Tribunal erred in its application of costs rules under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) and r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW)' "Whether the amount claimed or in dispute in the Builder's application was more than $30,000 for purposes of r 38" 'Whether there were special circumstances warranting an award of costs' "Whether leave to appeal should be granted on costs decision in Homeowner's application"]

Ratio Decidendi

The Appeal Panel determined that in the Builder's application, the amount claimed and ultimately awarded exceeded $30,000, thus the correct rule was r 38, not s 60. Under r 38, costs generally follow the event, so the Builder was entitled to its costs. For the Homeowner's application, leave to appeal was refused as there was no error of law or procedural unfairness identified and the ordinary costs rule applied.

Court Disposition

Appeal allowed in relation to Builder's application; leave to appeal refused and appeal dismissed in relation to Homeowner's application.

Orders

  • ["Appeal allowed in respect of HB 21/17092; respondent to pay applicant's costs as agreed or as assessed." 'Leave to appeal in respect of HB 21/19049 refused and appeal dismissed.' "Respondent to pay 80% of appellant's costs of the appeal, subject to further submissions on costs."]