Burgon v Oz Style Homes Pty Ltd

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Burgon v Oz Style Homes Pty Ltd [2021] NSWCATCD 41

Hearing dates:

Heard on the papers

Date of orders:

1 July 2021

Decision date:

01 July 2021

Jurisdiction:

Consumer and Commercial Division

Before:

D Goldstein, Senior Member

Decision:

1. A hearing on costs is dispensed with pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013.

2. Oz Style Homes Pty Ltd must pay 50% of Kylie Burgon and Christopher Burgon’s costs of the proceedings, such costs if not agreed to be assessed in accordance with the Legal Profession Uniform Law Application Act 2014.

Catchwords:

COSTS – Apportionment of costs – Mixed outcome – Calderbank offers

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Legal Profession Uniform Law Application Act 2014 (NSW)

Cases Cited:

Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304

Johnson T/As One Tree Constructions & Ors v Lukeman & Anor [2017] NSWCATAP 45

Miwa Pty Ltd v Siantan Properties Pte Ltd [2011] NSWCA 344

Texts Cited:

None cited

Category:

Costs

Parties:

Kylie Burgon and Christopher Burgon (Applicants)
Oz Style Homes Pty Ltd (Respondent)

Representation:

Solicitors:
Michael Atkinson & Associates (Applicants)
Reuben Mansour Solicitor (Respondent)

File Number(s):

HB 19/09900

Publication restriction:

Nil

REASONS FOR DECISION

1. In the decision given in these proceedings on 12 May 2021, the parties were ordered to have their experts prepare work orders having regard to specific paragraphs of the Reasons for Decision.

2. Orders were made in the event that a party was minded to apply for a costs order.

3. On 26 May 2021 the applicants filed an application for a costs order. The applicants submit that they were the successful party in their application and that in accordance with orthodox principles, they should receive an order for costs in their favour. The applicants consented to their costs application being determined on the basis of the parties written submissions and attached documents without the need for a hearing on costs.

4. Also on 26 May 2021 the respondent made a costs application. It sought the following orders:

1. From 27 February 2019 to 24 June 2020, it pay the applicant’s costs discounted by 50%; and

2. From 24 June 2020 the applicants pay its costs on the indemnity basis or alternatively, on the ordinary basis.

5. The respondent consented to its costs application being determined on the basis of the parties written submissions and attached documents without the need for a hearing on costs.

6. On 27 May 2021, the respondent applied to vary its costs application. To the extent that an extension of time is necessary for this, such extension is granted pursuant to s41 of the Civil and Administrative Tribunal Act 2013, since the extension required is so minimal. The further alternative costs order sought by the respondent is that, ‘from 27 February 2019 to 24 June 2020 each party bear its own costs’.

7. On 9 June 2021 the applicants filed and served their…