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, 42.14Cases 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 172Category: 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
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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.
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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.
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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’).
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The Builder opposes the application…
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- Case
- [2020] NSWDC 272
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the plaintiff's application for indemnity costs was justified and, if so, to what extent. The legal issues included the assessment of the offers of compromise, the timing of the proceedings, and the impact of the defendant's commencement of proceedings in the New South Wales Civil and Administrative Tribunal (NCAT).
The court found that the plaintiff had made reasonable offers of compromise, which the defendant had rejected. The timing of the proceedings and the subsequent commencement of proceedings in the NCAT did not preclude the plaintiff from seeking indemnity costs. The court was satisfied that the plaintiff had acted reasonably in making the offers and that the defendant's actions warranted indemnity costs. The court ordered that the plaintiff was entitled to indemnity costs from the date of the offer of compromise up until the date of the hearing of the application. Additionally, the court ordered that the defendant pay the plaintiff's costs of the application on the standard basis.
Orders
Orders of the court
See paragraphs 30-31
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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