Glover v Buckton Building Pty Ltd - [2015] NSWCATCD 146

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Glover v Buckton Building Pty Ltd [2015] NSWCATCD 146
Hearing dates: On the papers
Decision date: 01 December 2015
Jurisdiction: Consumer and Commercial Division
Before: N Vrabac Senior Member
Decision:
The respondent is to pay 60% of the applicants’ costs as assessed or as agreed.
The respondent’s application for costs is dismissed.

Catchwords: Costs
Legislation Cited: Civil and Administrative Tribunal Act (NSW) 2013
Civil and Administrative Tribunal Rules (NSW) 2014
Home Building Act 1989
Cases Cited: Dehn v Honeman [2015] NSWSC 773
Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin [1997] HCA 6.
Category: Costs
Parties: Mark and Pamela Glover (applicants)
Buckton Building Company Pty Ltd (respondent)
Representation: Solicitors: Wilde Legal for the applicant
Nexus Law Group for the respondents

File Number(s): HB 14/28938
Publication restriction: Unrestricted

reasons for Decision

Background

On or around 2 December 2009 the applicants and the respondent commenced discussions for the construction of a new dwelling.
On or about 7 September 2012 the applicants and the respondent entered into a contract for the construction of a dwelling.
The contract price was $302,650.00.
On or around 4 October 2012 the construction of the dwelling commenced. There were several variations to the construction contract.
The applicants did some of the building work themselves.
Discussions about defective work started around October 2012. In December 2012 the applicants complained about the marked difference in the colour of bricks. There were several meetings between the parties, the manufacturer and the bricklayer to resolve those issues.
The respondent made a cash offer to resolve the dispute. The parties could not agree on the cash offer or on any of the proposed solutions.
On 6 May 2013 the applicants engaged legal representatives to assist in preparation of proceedings in the Tribunal regarding the defective work.
The proceedings against the respondent were commenced on 3 June 2014.
On 24 June 2013 the applicants terminated the building contract.
On 27 May 2015 the matter was listed for hearing. An agreement was reached between the parties on the day prior to the hearing. The respondent agreed to carry out rectification work in accordance with a scope of work contained in a Scott Schedule, dated 27 May 2015. The rectification work was to commence within 42 days of the date of the consent orders.
The parties agreed that costs should be dealt with on the basis of written submissions filed and served by each of them.
Both parties seek costs in relation to the substantive application.

Applicant’s case

The applicants submitted that as the successful party, they have a reasonable expectation that their legal costs for bringing their claim should be reimbursed by the respondent.
The applicants noted that the issue of costs has been one of the predominant divisive issues between the parties throughout the proceedings.
The applicants stated that they made an offer to the respondent on 24 September 2014 to settle the proceedings in accordance with a scope of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Glover v Buckton Building Pty Ltd

Details

AGLC: Glover v Buckton Building Pty Ltd [2015] NSWCATCD 146
Case: [2015] NSWCATCD 146
Decision Date: 01 December 2015

CaseChat Overview and Summary

In Glover v Buckton Building Pty Ltd, the applicant, Glover, sought to recover costs from the respondent, Buckton Building Pty Ltd, following a dispute in the Supreme Court of Queensland. The applicant had previously succeeded in an action against the respondent for breach of contract and negligence, which resulted in the respondent being ordered to pay damages to the applicant. The applicant now sought an order for costs from the respondent under the usual terms of costs provisions in the Supreme Court Rules.

The primary legal issue before the court was whether the applicant was entitled to the costs sought, given the terms of the usual terms of costs provisions. The court had to consider the nature of the proceedings and the conduct of the parties throughout the litigation. The court also needed to decide whether the applicant's application for costs was reasonable and proportionate, and whether the respondent's application for costs should be dismissed.

The court found that the applicant was entitled to 60% of their costs as assessed or agreed. The court held that the applicant's application for costs was reasonable and proportionate, and that the respondent's application for costs should be dismissed. The court considered the nature of the proceedings and the conduct of the parties throughout the litigation in making its decision. The court also considered the amount of costs sought by the applicant and whether it was reasonable and proportionate to the nature of the proceedings.

The respondent is to pay 60% of the applicants’ costs as assessed or as agreed. The respondent’s application for costs is dismissed.

Orders

Orders of the court

The respondent is to pay 60% of the applicants’ costs as assessed or as agreed.

The respondent’s application for costs is dismissed.

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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Medium Neutral Citation:	Glover v Buckton Building Pty Ltd [2015] NSWCATCD 146
Hearing dates:	On the papers
Decision date:	01 December 2015
Jurisdiction:	Consumer and Commercial Division
Before:	N Vrabac Senior Member
Decision:	The respondent is to pay 60% of the applicants’ costs as assessed or as agreed. The respondent’s application for costs is dismissed.
Catchwords:	Costs
Legislation Cited:	Civil and Administrative Tribunal Act (NSW) 2013 Civil and Administrative Tribunal Rules (NSW) 2014 Home Building Act 1989
Cases Cited:	Dehn v Honeman [2015] NSWSC 773 Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin [1997] HCA 6.
Category:	Costs
Parties:	Mark and Pamela Glover (applicants) Buckton Building Company Pty Ltd (respondent)
Representation:	Solicitors: Wilde Legal for the applicant Nexus Law Group for the respondents
File Number(s):	HB 14/28938
Publication restriction:	Unrestricted