The Owners - Strata Plan 69743 v TRT Constructions Pty Ltd and John & Simon Constructions Pty Ltd [2014] NSWCATCD 119

The Owners - Strata Plan 69743 v TRT Constructions Pty Ltd and John & Simon Constructions Pty Ltd [2014] NSWCATCD 119

Although the applicant was responsible for choosing a Tribunal venue that was inappropriate once its claim was identified as substantially exceeding the Tribunal's monetary limit, the history of consent adjournments, settlement attempts, limited evidence from the first respondent, and the successful District Court appeal meant it would be unjust to make all Tribunal costs to date the first respondent's costs in the cause or to award indemnity costs. The proper discretionary order was that the applicant compensate the first respondent, on the ordinary basis, only for costs thrown away by reason of the late transfer to the Supreme Court, with assessment deferred until the wasted costs can...

Jurisdiction
Australia
Judgment Date
11 July 2014
Procedural Posture
Building Claim Concerning Construction of a Property at Merrylands / Determination on the Papers of the First Respondent's Costs Application After Transfer of Proceedings to the Supreme Court of New South Wales
Outcome
The first respondent's application for costs was allowed in part. The applicant was ordered to pay the first respondent's costs thrown away by the transfer to the Supreme Court on an ordinary basis and to pay the costs of the costs application; indemnity costs and a broader costs-in-the-cause order were not made.
Legal Topics
['costs Thrown Away' 'ordinary Basis Costs' 'indemnity Costs' 'transfer of Proceedings' 'tribunal Jurisdictional Limit']
['costs' 'civil Procedure' 'home Building'] ['costs Thrown Away' 'ordinary Basis Costs' 'indemnity Costs' 'transfer of Proceedings' 'tribunal Jurisdictional Limit']

Case Brief

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Procedural Posture

Building Claim Concerning Construction of a Property at Merrylands / Determination on the Papers of the First Respondent's Costs Application After Transfer of Proceedings to the Supreme Court of New South Wales

Legal Issues

  1. 1 ["Whether the costs of the proceedings to date in the Tribunal should be the first respondent's costs in the cause on a party/party basis." "Whether the applicant should pay the first respondent's costs thrown away by reason of the transfer to the Supreme Court of New South Wales, and whether those costs should be on an indemnity basis." 'Whether assessment of thrown away costs should await finalisation of the Supreme Court proceedings.' 'Whether the applicant should pay the costs of the costs application.']

Ratio Decidendi

Although the applicant was responsible for choosing a Tribunal venue that was inappropriate once its claim was identified as substantially exceeding the Tribunal's monetary limit, the history of consent adjournments, settlement attempts, limited evidence from the first respondent, and the successful District Court appeal meant it would be unjust to make all Tribunal costs to date the first respondent's costs in the cause or to award indemnity costs. The proper discretionary order was that the applicant compensate the first respondent, on the ordinary basis, only for costs thrown away by reason of the late transfer to the Supreme Court, with assessment deferred until the wasted costs can...

Court Disposition

The first respondent's application for costs was allowed in part. The applicant was ordered to pay the first respondent's costs thrown away by the transfer to the Supreme Court on an ordinary basis and to pay the costs of the costs application; indemnity costs and a broader costs-in-the-cause order were not made.

Orders

  • ['The applicant is to pay to the first respondent the costs of the first respondent thrown away by reason of the transfer of these proceedings to the Supreme Court of New South Wales, such costs to be paid on an ordinary basis.' 'The assessment of the costs pursuant to order 1 is to await the finalisation of these...