TRIMIS & ANOR v MINA (No 2) [1999] NSWCA 246

TRIMIS & ANOR v MINA (No 2) [1999] NSWCA 246

Because the builder ultimately recovered a substantial verdict, the owners were substantially unsuccessful on the appeal, no Calderbank offers or counterpart under the Rules were identified, and although the variations issue took disproportionate trial time it did not extend the appeal, the appropriate overall costs order was that the appellants pay 75% of the builder's costs in the District Court and on appeal.

Jurisdiction
Australia
Judgment Date
16 July 1999
Procedural Posture
Appeal From District Court Judgment Concerning a Builder's Claim and Owners' Cross Claim / Costs and Final Orders After Reasons Published on 18 May 1999
Outcome
Appeal allowed in part.
Legal Topics
['apportionment of Costs After Partial Success' 'building Contract Variations' 'restitutionary Principles' 'cross Claim' 'appeal From District Court']
['costs' 'contract Law' 'building and Construction'] ['apportionment of Costs After Partial Success' 'building Contract Variations' 'restitutionary Principles' 'cross Claim' 'appeal From District Court']

Case Brief

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Procedural Posture

Appeal From District Court Judgment Concerning a Builder's Claim and Owners' Cross Claim / Costs and Final Orders After Reasons Published on 18 May 1999

Legal Issues

  1. 1 ['What costs order should be made where the appellants succeeded only on part of the appeal concerning five variations but otherwise substantially failed.' "Whether the respondent builder's judgment should be reduced to exclude amounts for five variations not in writing."]

Ratio Decidendi

Because the builder ultimately recovered a substantial verdict, the owners were substantially unsuccessful on the appeal, no Calderbank offers or counterpart under the Rules were identified, and although the variations issue took disproportionate trial time it did not extend the appeal, the appropriate overall costs order was that the appellants pay 75% of the builder's costs in the District Court and on appeal.

Court Disposition

Appeal allowed in part.

Orders

  • ['Appeal allowed in part.' "The verdict in the respondent's favour in the sum of $50,720.83, inclusive of interest to date of judgment, is reduced to $44,787.25, such order to take effect from the date of judgment in the District Court." "In lieu of the costs order at trial, the appellants are to pay 75% of the...