Betta Build Group Pty Ltd v El Baba (No. 3)

District Court

New South Wales

Medium Neutral Citation:	Betta Build Group Pty Ltd v El Baba (No. 3) [2020] NSWDC 272
Hearing dates:	On the papers
Date of orders:	04 June 2020
Decision date:	04 June 2020
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraphs 30-31
Catchwords:	COSTS – application by successful party to vary costs order from the usual costs order– application for indemnity costs following rejection of offers of compromise – dispute against application with respect to some of the offers – impact of commencement of proceedings in NCAT
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 60, Schedule 4 Home Building Act 1989 (NSW), ss 7E, 18F, Part 2C Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.1, 42.13, 42.14
Cases Cited:	Betta Build Group Pty Ltd v El Baba [2019] NSWDC 331 Betta Build Group Pty Ltd v El Baba (No.2) [2020] NSWDC 238 Jones v Bradley (No. 2) [2003] NSWCA 258 Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No. 2) [2014] NSWCA 391 The Uniting Church v Takacs (No 2) [2008] NSWCA 172
Category:	Costs
Parties:	Betta Build Group Pty Ltd (Plaintiff/Cross-Defendant) Mr AR El Baba (Defendant/Cross-Claimant)
Representation:	Counsel: Mr F Anwar for the plaintiff Mr M Klooster for the defendant Solicitors: SMB Law for the plaintiff G&S Law Group for the defendant
File Number(s):	2018/256941
Publication restriction:	Nil

Judgment

BACKGROUND

1. These reasons concern an application for costs by the defendant/cross-claimant (‘the Owner’) following proceedings brought against the plaintiff (‘the Builder’) in respect to construction works over a residential property at Bankstown undertaken in the period from October 2015 to February 2017. Proceedings were originally commenced in the New South Wales Civil and Administrative Tribunal (‘NCAT’) but were transferred to this Court.

2. The Owner was substantially successful in the proceeding, resisting claims brought by the Builder and establishing his own claims for an overpayment made to the Builder (for the sum of $29,961.36) and an additional claim for the cost of defective works[1] . Following a referral of the issue of the costs of rectification, the Owner obtained a monetary judgment in the sum of $227,941.21 in relation to the latter claim. Orders were also made for pre-judgment interest on each claim[2] .

   1. Betta Build Group Pty Ltd v El Baba [2019] NSWDC 331 (the ‘Main Judgment’).

   2. Betta Build Group Pty Ltd v El Baba (No.2) [2020] NSWDC 238.

3. The Owner now seeks a partial order for indemnity costs of the proceeding (embracing also the costs of the proceeding when it was before the NCAT) on various alternative bases. They are that the Owner achieved a no less favourable ultimate result than that which he offered to the Builder in (a) a Calderbank offer made on 3 July 2018 (the ‘First Offer’); or (b) an offer of compromise served on 5 February 2019 (the ‘Second Offer’); or (c) a Calderbank offer and offer of compromise served on 29 April 2019 (the ‘Third Offer’).

4. The Builder opposes the application…