Willoughby Homes Pty Ltd v Pawar [2021] NSWCATAP 308

Willoughby Homes Pty Ltd v Pawar [2021] NSWCATAP 308

The appeal was dismissed because the Senior Member did not err in concluding that the appellant's failure to comply with any of the Tribunal's directions, including late service of evidence and failure to provide points of defence, caused obvious disadvantage and prejudice to the respondent and amounted to disentitling conduct. That conduct justified limiting the appellant's costs to the costs of the second hearing day on the ordinary basis. The Senior Member's reasons were adequate when read as a whole, and the costs discretion did not miscarry under House v R.

Jurisdiction
Australia
Judgment Date
07 October 2021
Procedural Posture
Appeal Concerning Costs Order in Home Building Proceedings / Appeal Panel Decision on the Papers
Outcome
Appeal dismissed.
Legal Topics
['appeal From Costs Order' 'disentitling Conduct' 'failure to Comply With Tribunal Directions' 'ordinary Costs' 'indemnity Costs' 'calderbank Offer' 'house V R Discretion Principles']
['civil Procedure' 'costs' 'consumer and Commercial' 'home Building'] ['appeal From Costs Order' 'disentitling Conduct' 'failure to Comply With Tribunal Directions' 'ordinary Costs' 'indemnity Costs' 'calderbank Offer' 'house V R Discretion Principles']

Case Brief

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Procedural Posture

Appeal Concerning Costs Order in Home Building Proceedings / Appeal Panel Decision on the Papers

Legal Issues

  1. 1 ["Whether the Senior Member erred in treating the appellant's failure to comply with Tribunal directions as disentitling conduct for costs purposes." 'Whether the costs discretion miscarried under the principles in House v R [1936] HCA 40.' "Whether the reasons for limiting the appellant's costs to the second day of hearing were inadequate." 'Whether any basis existed for indemnity costs based on a Calderbank offer.']

Ratio Decidendi

The appeal was dismissed because the Senior Member did not err in concluding that the appellant's failure to comply with any of the Tribunal's directions, including late service of evidence and failure to provide points of defence, caused obvious disadvantage and prejudice to the respondent and amounted to disentitling conduct. That conduct justified limiting the appellant's costs to the costs of the second hearing day on the ordinary basis. The Senior Member's reasons were adequate when read as a whole, and the costs discretion did not miscarry under House v R.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal is dismissed.' 'The appellant is to pay the costs of the respondent assessed in default of agreement.']