McIntyre v DRW Constructions Pty Ltd; DRW Constructions Pty Ltd v McIntyre

Link copied
Case Copied 18 min read

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: McIntyre v DRW Constructions Pty Ltd; DRW Constructions Pty Ltd v McIntyre [2018] NSWCATCD 58
Hearing dates: On the papers
Date of orders: 19 October 2018
Decision date: 19 October 2018
Jurisdiction:Consumer and Commercial Division
Before: K Rosser, Principal Member
Decision:

(1) A hearing on costs is dispensed with in accordance with s 50(1) (c) of the Civil and Administrative Tribunal Act 2013.

 (2)   The parties are to pay their own costs of proceedings HB 14/51956 and HB 16/15535.
Catchwords: Costs – apportionment of costs – Calderbank letter – whether settlement offer unreasonably refused
Legislation Cited: Civil and Administrative Tribunal Act 2013
Civil and Administrative Tribunal Rules 2014
Home Building Act 1989
Cases Cited: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12
BNT Constructions Pty Ltd v Allen [2017] NSWCATAP 186
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261
Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373
Gretton v Commonwealth of Australia [2007] NSWSC 149
Hawkesbury District Health Service Ltd v Chaker (No 2) [2011] NSWCA 30
Hogan v Trustee of the Roman Catholic Church (No 2) [2006] NSWSC 74
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
Macourt v Clark (No 2) [2012] NSWCA 411
Miwa Pty Ltd v Siantan Properties Pte Ltd (No. 2) [2011] NSWCA 344
Ruddock v Vadarlis [2001] FCA 1865
Sydney Ferries v Morton (No 2) [2010] NSWCA 238
Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) (2011) 288 ALR 385
Texts Cited: Nil
Category:Costs
Parties:

HB14/51965:
Helen McIntyre and William McIntyre (Applicants)
DRW Constructions Pty Ltd (First Respondent)
David Workman (Second Respondent)

  HB16/15535:
DRW Constructions Pty Ltd (Applicant)
Helen McIntyre and William McIntyre (Respondents)
Representation:

Counsel:
Mr Loewenstein ( Applicants in HB 14/51956 and Respondents in HB 16/15535)
Mr Jordan ( Respondents in HB 14/51956 and Applicants in HB 16/15535)

  Solicitors:
Aubrey Brown Lawyers ( Applicants in HB 14/51956 and Respondents in HB 16/15535)
Elsworthy Solicitors (Respondents in HB 14/51956 and Applicants in HB 16/15535)
File Number(s): HB 14/51956; HB 16/15535
Publication restriction: Nil

Reasons for decision

Introduction

  1. These reasons for decision concern an application for costs made by the respondents (the Builder and Mr Workman) against the applicants (the Owners). The costs application was received by the Tribunal’s Registry on 5 February 2018.

  2. For the reasons set out below I have dispensed with a hearing on costs and have ordered that the parties pay their own costs of the proceedings.

  3. I apologise to the parties for the delay in publishing this decision.

Background

  1. The background to both applications and my findings of fact are set out in the reasons for decision in respect of the substantive applications.

  2. In their application, the Owners’ sought damages from the Builder in respect of:

  1. Defective and/or incomplete works (the Defects Claim);

  2. Delay…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read McIntyre v DRW Constructions Pty Ltd; DRW Constructions Pty... and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2018] NSWCATCD 58
Decision Date

CaseChat Overview and Summary

McIntyre and DRW Constructions Pty Ltd were involved in a dispute that was heard by the Civil and Administrative Tribunal of New South Wales. The case involved a claim for damages for defective building work, with the plaintiff alleging that the defendant had failed to complete the work to an acceptable standard. The defendant, in turn, sought to recover costs associated with the proceedings. The primary legal issue before the tribunal was whether the plaintiff had unreasonably refused a settlement offer made by the defendant, which would have impacted the apportionment of costs between the parties.

In considering the issue of costs, the tribunal noted that the defendant had made a settlement offer through a Calderbank letter. The tribunal examined the circumstances surrounding the offer, including the evidence presented by both parties and the merits of the case. The tribunal determined that the plaintiff had not unreasonably refused the settlement offer and therefore the defendant was not entitled to an order for costs based on the offer. The tribunal also considered the overall conduct of the proceedings and found that both parties had acted reasonably, leading to the conclusion that each party should bear their own costs.

Given the findings on the settlement offer and the overall conduct of the proceedings, the tribunal made an order that a hearing on costs was dispensed with. The order also specified that both parties were to pay their own costs of the proceedings in two separate matters, HB 14/51956 and HB 16/15535. This decision reflects the tribunal's view that neither party was entitled to an order for costs based on the defendant's settlement offer or the overall conduct of the case.

Orders

Orders of the court

(1) A hearing on costs is dispensed with in accordance with s 50(1) (c) of the Civil and Administrative Tribunal Act 2013.

(2) The parties are to pay their own costs of proceedings HB 14/51956 and HB 16/15535.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.