Timilty Constructions Pty Ltd v Culina (No 2) [2023] NSWCATAP 148

Timilty Constructions Pty Ltd v Culina (No 2) [2023] NSWCATAP 148

Where both parties have had partial success on appeal regarding different issues and the appeal is upheld in part only, the Tribunal’s discretion is appropriately exercised by making no order as to costs, reflecting mixed outcomes and the authorities establishing that the usual rule may be displaced in such circumstances.

Jurisdiction
Australia
Judgment Date
31 May 2023
Procedural Posture
Appeal / Costs Determination After Appeal Judgment
Outcome
No order as to costs; each party to pay its own costs of the appeal.
Legal Topics
['appeal Costs' 'statutory Warranties' 'home Building Act' 'apportionment of Costs' 'discretion in Costs' 'mixed Success on Appeal']
['costs Law' 'building and Construction'] ['appeal Costs' 'statutory Warranties' 'home Building Act' 'apportionment of Costs' 'discretion in Costs' 'mixed Success on Appeal']

Case Brief

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Procedural Posture

Appeal / Costs Determination After Appeal Judgment

Legal Issues

  1. 1 ['Whether an order for costs should be made following a partly successful appeal concerning statutory warranties and defective work' 'Whether the costs provisions under r 38(2)(b) and r 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) apply' 'Whether the amount in dispute on appeal exceeded $30,000 so as to displace the requirement for special circumstances for a costs order' 'The relevance of parties’ relative success on different issues to the exercise of discretion on costs']

Ratio Decidendi

Where both parties have had partial success on appeal regarding different issues and the appeal is upheld in part only, the Tribunal’s discretion is appropriately exercised by making no order as to costs, reflecting mixed outcomes and the authorities establishing that the usual rule may be displaced in such circumstances.

Court Disposition

No order as to costs; each party to pay its own costs of the appeal.

Orders

  • ["Pursuant to s 50(2) of the Civil and Administrative Tribunal Act (2013) (NSW), dispense with a hearing on the costs of the appeal and determine the question of costs 'on the papers'." 'Make no order as to costs, with the intention that each party pay its own costs of the appeal.']