TA & JR O’Keefe Pty Ltd v Benita Holroyd and Clarence Valley Council [2015] NSWCATAP 112

TA & JR O’Keefe Pty Ltd v Benita Holroyd and Clarence Valley Council [2015] NSWCATAP 112

The Tribunal identified the correct Aust-Homes Investments test but failed to make a finding on whether the builder acted unreasonably in defending the proceedings. That failure to take into account a material limb of the applicable test was an error of law in the exercise of the costs discretion. On rehearing, the owner acted reasonably in commencing and maintaining the proceedings and the builder did not act unreasonably in defending them, so the proper costs order was no order as to costs in HB11/35746.

Jurisdiction
Australia
Judgment Date
18 June 2015
Procedural Posture
Internal Appeal From Costs Orders in Consumer and Commercial Division Home Building Proceedings / Appeal Allowed
Outcome
Appeal allowed; costs orders set aside; no order as to costs in HB11/35746; applications for costs of the appeal to be dealt with by directions.
Legal Topics
['internal Appeal' 'error of Law' 'costs Discretion After Settlement' 'amendment or New Appeal Ground' 'residential Building Work' 'no Order as to Costs']
['civil Procedure' 'costs' 'administrative Law' 'home Building'] ['internal Appeal' 'error of Law' 'costs Discretion After Settlement' 'amendment or New Appeal Ground' 'residential Building Work' 'no Order as to Costs']

Case Brief

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Procedural Posture

Internal Appeal From Costs Orders in Consumer and Commercial Division Home Building Proceedings / Appeal Allowed

Legal Issues

  1. 1 ['Whether the Appeal Panel should consider a new ground of appeal raised during the hearing.' 'Whether the Tribunal made an error of law by failing to apply the second limb of the costs test in Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194.' 'What costs order should be made where the substantive proceedings settled without admission and without a determination on the merits.']

Ratio Decidendi

The Tribunal identified the correct Aust-Homes Investments test but failed to make a finding on whether the builder acted unreasonably in defending the proceedings. That failure to take into account a material limb of the applicable test was an error of law in the exercise of the costs discretion. On rehearing, the owner acted reasonably in commencing and maintaining the proceedings and the builder did not act unreasonably in defending them, so the proper costs order was no order as to costs in HB11/35746.

Court Disposition

Appeal allowed; costs orders set aside; no order as to costs in HB11/35746; applications for costs of the appeal to be dealt with by directions.

Orders

  • ['The appeal is allowed.' 'Orders 1 and 3 made by the Consumer and Commercial Division on 1 April 2014 are set aside.' 'In lieu thereof, there is no order as to costs in HB11/35746.' 'Any applications for costs of the appeal are to be dealt with in accordance with the directions given at paragraph 60 of the reasons...