Larsen v Tastec Pty Ltd (No 2)

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Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Larsen v Tastec Pty Ltd (No 2) [2023] NSWCA 141
Hearing dates: On the papers
Date of orders: 27 June 2023
Decision date: 27 June 2023
Before: Ward P; Mitchelmore JA; Kirk JA
Decision:

The respondents’ application to vary the orders of the Court dated 9 March 2023 is dismissed with costs.

Catchwords:

COSTS – setting aside and variation of costs order – Uniform Civil Procedure Rules 2005 (NSW) rule 36.16 – where costs awarded to successful appellants despite lack of success on all grounds of appeal – whether to vary order awarding costs of appeal given mixed success by the appellants – whether to set aside order setting aside costs order below in respondents’ favour given mixed success by appellants

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 36.16

Cases Cited:

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

Ryde Developments Pty Ltd v The Property Investing Alliance Pty Ltd [2018] NSWCA 40

Sims v The Commonwealth (No 2) [2023] NSWCA 30

University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; [1985] HCA 28

Category:Costs
Parties: Derek Larsen as trustee for the Larsen Superannuation Fund (ABN 95 894 143 943) (First Appellant
Floyd Larsen as trustee for the Larsen Superannuation Fund (ABN 95 894 143 943) (Second Appellant)
Tastec Pty Ltd (formerly Wonders Building Company Pty Limited) (ACN 051 516 682) (First Respondent)
Stephen Sainsbury (Second Respondent)
Representation:

Counsel:
I Roberts SC / J Wright (Appellants)
M Gracie (Respondents)

Solicitors:
Mills Oakley (Appellants)
Whitfields Solicitors (Respondents)
File Number(s): 2021/363142
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Date of Decision:
17 December 2021
Before:
S J Gibb DCJ
File Number(s):
2020/83478

Judgment

  1. THE COURT: On 9 March 2023, the Court allowed an appeal by the appellants, Mr and Mrs Larsen, against a decision of S J Gibb DCJ in the District Court concerning the respondents’ supply and assembly of a pre-fabricated house on the Larsens’ property: Larsen v Tastec Pty Ltd [2023] NSWCA 39. We will assume familiarity with those reasons and, for convenience, we will use the same defined terms.

  2. The Court made the following orders:

“(1)   Appeal allowed.

(2)   Set aside Order 1 of the orders of the District Court on 17 December 2021, and Order 4 of the orders of the District Court on 4 March 2022.

(3)   In lieu thereof, order that:

(a)   The Plaintiff’s claim for damages for breach of contract against the First Defendant is dismissed.

(b)   The Plaintiff’s claim against the First and Second Defendants for relief under the Australian Consumer Law (ACL) be remitted to the District Court, to a judge other than the primary judge, for determination of:

(i)   what relief (if any) should be granted pursuant to s 236 and/or s 237 of the ACL, and

(ii)   the costs of the proceedings.

(4)   The respondents are to pay the appellants’ costs of…

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Details
Case
[2023] NSWCA 141
Decision Date

CaseChat Overview and Summary

The parties in this matter were the appellants, Larsen, and the respondents, Tastec Pty Ltd. The dispute concerned an application to vary previous costs orders made by the Court of Appeal of New South Wales. Specifically, the respondents sought to vary orders that had awarded costs to the appellants despite the appellants not succeeding on all grounds of their appeal, and also sought to set aside an order that had set aside a costs order made in the respondents' favour at first instance, again in light of the appellants' mixed success on appeal. The Court of Appeal of New South Wales was required to determine whether to vary these costs orders.

The central legal issues before the Court were whether the appellants' mixed success on appeal warranted a variation of the costs order made in their favour, and whether the prior order setting aside a costs order in favour of the respondents should be disturbed on the same grounds. The Court considered the application of rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW), which governs the setting aside and variation of judgments and orders.

The Court dismissed the respondents' application to vary the costs orders. The reasoning applied by the Court, though not detailed in the provided text, would have involved an assessment of the extent of the appellants' success and failure on appeal, and whether the initial costs order reflected a proper exercise of discretion in light of that mixed success. The Court ultimately upheld the existing costs orders.

The respondents' application to vary the orders of the Court dated 9 March 2023 was dismissed with costs.

Orders

Orders of the court

The respondents’ application to vary the orders of the Court dated 9 March 2023 is dismissed with costs.

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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