Urban Constructions (NSW) Pty Ltd v Shearer [2015] NSWCATAP 278

Urban Constructions (NSW) Pty Ltd v Shearer [2015] NSWCATAP 278

The Tribunal erred in law by treating recovery under section 94(1A) of the Home Building Act 1989 (NSW) as requiring leave or an indulgence and by elevating the indulgence principle into a governing rule in the costs discretion. Section 94(1A) confers an entitlement to recover on a quantum meruit basis where the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
21 December 2015
Procedural Posture
Appeal From Costs Decision in Home Building Proceedings / Appeal Allowed; Decision at First Instance Set Aside; Matter Remitted
Outcome
Appeal allowed; decision at first instance set aside; matter remitted to the Tribunal as constituted at first instance.
Legal Topics
['appeal on Question of Law' 'costs Discretion' 'calderbank Offers' 'section 94(1 A) of the Home Building Act 1989 (nsw)' 'indulgence Principle' 'adequacy of Reasons' 'irrelevant Considerations']
['civil Procedure' 'costs' 'home Building' 'administrative Law'] ['appeal on Question of Law' 'costs Discretion' 'calderbank Offers' 'section 94(1 A) of the Home Building Act 1989 (nsw)' 'indulgence Principle' 'adequacy of Reasons' 'irrelevant Considerations']

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Procedural Posture

Appeal From Costs Decision in Home Building Proceedings / Appeal Allowed; Decision at First Instance Set Aside; Matter Remitted

Legal Issues

  1. 1 ['Whether section 94(1A) of the Home Building Act 1989 (NSW) required leave or an indulgence, or instead conferred an entitlement to recover on a quantum meruit basis where just and equitable.' 'Whether the Tribunal erred by applying the indulgence principle by analogy with relief against forfeiture when determining costs.' 'Whether the Tribunal failed to give adequate reasons for ordering that Mr Cosco bear his own costs despite his success on the cross-claim.' "Whether the Tribunal took into account irrelevant considerations, including related Supreme Court proceedings and the amount of the appellants' costs, when considering the Calderbank offers."]

Ratio Decidendi

The Tribunal erred in law by treating recovery under section 94(1A) of the Home Building Act 1989 (NSW) as requiring leave or an indulgence and by elevating the indulgence principle into a governing rule in the costs discretion. Section 94(1A) confers an entitlement to recover on a quantum meruit basis where the Tribunal considers it just and equitable. The Tribunal also failed to give adequate reasons for refusing Mr Cosco his costs, despite his distinct position and success on the respondents' cross-claim. These errors required the costs decision to be set aside and remitted for reconsideration.

Court Disposition

Appeal allowed; decision at first instance set aside; matter remitted to the Tribunal as constituted at first instance.

Orders

  • ['Appeal allowed.' 'Decision at first instance set aside.' 'Matter remitted to Tribunal as constituted at first instance.']