The Owners – Strata Plan No. 96841 v KF Developments Pty Ltd [2022] NSWCATCD 13

The Owners – Strata Plan No. 96841 v KF Developments Pty Ltd [2022] NSWCATCD 13

No costs order was warranted because the application was filed due to the imminent limitation period rather than unreasonable conduct by the respondents, the respondents had undertaken and remained willing to undertake rectification work, the consent work order did not amount to capitulation or a substantial victory where the live dispute concerned the method of rectification for a limited number of conceded defects, and the respondents' conduct was reasonable throughout the proceedings.

Jurisdiction
Australia
Judgment Date
20 January 2022
Procedural Posture
Costs Application in Home Building Defects Proceedings / On the Papers After Consent Work Orders Made on 14 October 2021
Outcome
No order for costs in favour of either party; each party to pay their own costs of the application.
Legal Topics
['costs Following Consent Resolution' 'work Order by Consent' 'unreasonable Conduct' 'statutory Preference for Rectification' 'no Decision on the Merits']
['costs' 'home Building' 'strata Defects' 'civil and Administrative Procedure'] ['costs Following Consent Resolution' 'work Order by Consent' 'unreasonable Conduct' 'statutory Preference for Rectification' 'no Decision on the Merits']

Case Brief

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Procedural Posture

Costs Application in Home Building Defects Proceedings / On the Papers After Consent Work Orders Made on 14 October 2021

Legal Issues

  1. 1 ['What order should be made as to the costs of an application resolved by consent orders.' "Whether the applicant was compelled to commence proceedings by the respondents' conduct." 'Whether the applicant would almost certainly have succeeded had the matter proceeded to hearing.' 'Whether the respondents effectively capitulated by consenting to a work order.' "Whether the respondents' conduct was unreasonable so as to warrant a costs order."]

Ratio Decidendi

No costs order was warranted because the application was filed due to the imminent limitation period rather than unreasonable conduct by the respondents, the respondents had undertaken and remained willing to undertake rectification work, the consent work order did not amount to capitulation or a substantial victory where the live dispute concerned the method of rectification for a limited number of conceded defects, and the respondents' conduct was reasonable throughout the proceedings.

Court Disposition

No order for costs in favour of either party; each party to pay their own costs of the application.

Orders

  • ['The Tribunal dispenses with a hearing on the question of costs, pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.' 'Each party is the pay their own costs of the application.']