The Owners - Strata Plan 89023 v AT Building Pty Ltd [2019] NSWCATAP 171

The Owners - Strata Plan 89023 v AT Building Pty Ltd [2019] NSWCATAP 171

The Tribunal did not make an error of law or discretionary error in finding that the Owners unreasonably rejected the Builders' Calderbank offer. The Tribunal considered the relevant matters, there was evidence supporting the finding, the offer was clear, made early, open for a reasonable time, a real compromise, and more favourable than the ultimate orders. The costs decision was open to the Tribunal and was not unreasonable, plainly unjust, unfair, inequitable, or against the weight of evidence; no substantial miscarriage of justice justified leave on the non-question-of-law ground.

Jurisdiction
Australia
Judgment Date
11 July 2019
Procedural Posture
Internal Appeal From Costs Decision in Home Building Proceedings / Appeal Panel Decision on Leave to Appeal and Appeal
Outcome
Leave to appeal refused; appeal dismissed.
Legal Topics
['work Orders for Rectification of Defects' 'calderbank Offer' 'indemnity Costs' 'error of Law' 'exercise of Discretion' 'leave to Appeal' 'statute Barred Defects']
['home Building' 'civil Procedure' 'costs' 'tribunal Appeals'] ['work Orders for Rectification of Defects' 'calderbank Offer' 'indemnity Costs' 'error of Law' 'exercise of Discretion' 'leave to Appeal' 'statute Barred Defects']

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Procedural Posture

Internal Appeal From Costs Decision in Home Building Proceedings / Appeal Panel Decision on Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether the Tribunal erred in deciding that the Owners were not justified in rejecting the Calderbank offer made on 28 September 2016 by the Builders.' 'Whether the Tribunal failed to take into account relevant considerations or gave them insufficient weight in exercising its costs discretion.' 'Whether there was evidence to support the finding that rejection of the Calderbank offer was unreasonable.' 'Whether the costs decision involved an error of the kind identified in House v The King.' 'Whether leave to appeal should be granted on a ground not raising a question of law.']

Ratio Decidendi

The Tribunal did not make an error of law or discretionary error in finding that the Owners unreasonably rejected the Builders' Calderbank offer. The Tribunal considered the relevant matters, there was evidence supporting the finding, the offer was clear, made early, open for a reasonable time, a real compromise, and more favourable than the ultimate orders. The costs decision was open to the Tribunal and was not unreasonable, plainly unjust, unfair, inequitable, or against the weight of evidence; no substantial miscarriage of justice justified leave on the non-question-of-law ground.

Court Disposition

Leave to appeal refused; appeal dismissed.

Orders

  • ['Leave to appeal is refused.' 'The appeal is dismissed.' 'If a party seeks an order for costs of the appeal, that party may file written submissions within 14 days of publication of these reasons seeking an order in relation to the costs of the appeal.' 'If a party files submissions in accordance with order 3, any...