Pan v St George Design & Construction Pty Ltd (No 2) - [2025] NSWCATCD 77

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Pan v St George Design & Construction Pty Ltd (No 2) [2025] NSWCATCD 77
Hearing dates: On the papers
Date of orders: 28 August 2025
Decision date: 28 August 2025
Jurisdiction: Consumer and Commercial Division
Before: G Sarginson, Deputy President
Decision:
(1) A hearing on the issue of costs is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).
(2) Order 3 of the Tribunal dated 28 May 2025 is varied to read: “The respondent is to pay the applicants’ costs of the proceedings on the ordinary basis as agreed or assessed, other than in respect of the costs order made by the Tribunal on 9 February 2024.”
(3) The Tribunal affirms the costs order made on 9 February 2024.”

Catchwords:
COSTS - r 38 Civil and Administrative Tribunal Rules 2014 (NSW) – Calderbank offer – whether unreasonably refused

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Health Practitioner Regulation National Law 2009 (NSW)
Home Building Act 1989 (NSW)

Cases Cited:
Allianz v Waterbrook [2009] NSWCA 224; (2009) 15 ANZ Insurance Cases 224
Arian v Nguyen (2001) 33 MVR 37; [2001] NSWCA 5
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90
Eko Investments Pty Ltd v Austruc Constructions Ltd [2009] NSWSC 371
Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373
Harper v Harper (No 2) [2025] NSWSC 360
Hogan v Trustee of the Roman Catholic Church (No 2) [2006] NSWSC 74
Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd (No 2) [2024] NSWCA 274
Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Puri v Medical Council Of New South Wales (No 2) [2024] NSWCATOD 122
Ritter v Godfrey [1920] 2 KB 47
State of New South Wales v Stanley [2007] NSWCA 330
Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256
Vella v Mir (No 3) [2020] NSWCATAP 17
Waterman v Gerling (Costs) [2005] NSWSC 1111
Yazgi v Permanent Custodians Ltd (No 2) (2007) 13 BPR 24; [2007] NSWCA 306

Texts Cited:
None cited

Category: Costs
Parties: Geoffrey Pan and Huiquing Zheng (Applicants)
St George Design & Construction Pty Ltd (Respondent)
Representation: Solicitors:
Birch Partners (Applicants)
Fortis Law (Respondent)

File Number(s): 2023/00406855
Publication restriction: Nil

REASONS FOR DECISION

This is an application to vary the costs order made in the substantive decision.
The substantive decision is dated 28 May 2025. Written reasons were provided comprising of 64 pages. This costs decision is to be read in conjunction with the substantive decision.
The substantive decision involved a dispute under the Home Building Act 1989 (NSW) (HB Act). The applicants are homeowners and the respondent is a licensed builder.
The applicants are successors in title who purchased the…

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.

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Details

Case: [2025] NSWCATCD 77
Decision Date: 28 August 2025

CaseChat Overview and Summary

In the matter of Pan v St George Design & Construction Pty Ltd, the Central Authority of the Civil and Administrative Tribunal in New South Wales dealt with a dispute concerning the unreasonable refusal of a Calderbank offer in relation to costs. The plaintiff, Mr Pan, was engaged by the defendant, St George Design & Construction Pty Ltd, for construction services. After the completion of the contract, a dispute arose regarding the amount owed to Mr Pan for his services. The Tribunal had previously made an order for costs in favour of Mr Pan, but the defendant challenged this decision.

The legal issues before the Tribunal involved whether the defendant had unreasonably refused a Calderbank offer. Under Rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW), a party may make a Calderbank offer, which is an offer to compromise a claim or defence, and if the offer is not accepted and the offeror subsequently succeeds in the proceedings, they may be entitled to costs on a more favourable basis. The Tribunal needed to determine whether the defendant's refusal was reasonable or if it was unreasonable, which would entitle Mr Pan to costs on the ordinary basis.

The Tribunal found that the defendant had unreasonably refused the Calderbank offer. The Tribunal considered the circumstances surrounding the offer, including the terms and timing of the offer, and concluded that the defendant's refusal was not justified. As a result, the Tribunal varied the previous costs order to reflect that the defendant should pay Mr Pan's costs on the ordinary basis, except in respect of the costs order made on 9 February 2024. The Tribunal also affirmed the costs order made on that date. The Tribunal did not consider it necessary to hold a further hearing on the issue of costs and dispensed with such a hearing under section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

Orders

Orders of the court

(1) A hearing on the issue of costs is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

(2) Order 3 of the Tribunal dated 28 May 2025 is varied to read: “The respondent is to pay the applicants’ costs of the proceedings on the ordinary basis as agreed or assessed, other than in respect of the costs order made by the Tribunal on 9 February 2024.”

(3) The Tribunal affirms the costs order made on 9 February 2024.”

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.

Medium Neutral Citation:	Pan v St George Design & Construction Pty Ltd (No 2) [2025] NSWCATCD 77
Hearing dates:	On the papers
Date of orders:	28 August 2025
Decision date:	28 August 2025
Jurisdiction:	Consumer and Commercial Division
Before:	G Sarginson, Deputy President
Decision:	(1) A hearing on the issue of costs is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). (2) Order 3 of the Tribunal dated 28 May 2025 is varied to read: “The respondent is to pay the applicants’ costs of the proceedings on the ordinary basis as agreed or assessed, other than in respect of the costs order made by the Tribunal on 9 February 2024.” (3) The Tribunal affirms the costs order made on 9 February 2024.”
Catchwords:	COSTS - r 38 Civil and Administrative Tribunal Rules 2014 (NSW) – Calderbank offer – whether unreasonably refused
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Health Practitioner Regulation National Law 2009 (NSW) Home Building Act 1989 (NSW)
Cases Cited:	Allianz v Waterbrook [2009] NSWCA 224; (2009) 15 ANZ Insurance Cases 224 Arian v Nguyen (2001) 33 MVR 37; [2001] NSWCA 5 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90 Eko Investments Pty Ltd v Austruc Constructions Ltd [2009] NSWSC 371 Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 Harper v Harper (No 2) [2025] NSWSC 360 Hogan v Trustee of the Roman Catholic Church (No 2) [2006] NSWSC 74 Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd (No 2) [2024] NSWCA 274 Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Puri v Medical Council Of New South Wales (No 2) [2024] NSWCATOD 122 Ritter v Godfrey [1920] 2 KB 47 State of New South Wales v Stanley [2007] NSWCA 330 Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256 Vella v Mir (No 3) [2020] NSWCATAP 17 Waterman v Gerling (Costs) [2005] NSWSC 1111 Yazgi v Permanent Custodians Ltd (No 2) (2007) 13 BPR 24; [2007] NSWCA 306
Texts Cited:	None cited
Category:	Costs
Parties:	Geoffrey Pan and Huiquing Zheng (Applicants) St George Design & Construction Pty Ltd (Respondent)
Representation:	Solicitors: Birch Partners (Applicants) Fortis Law (Respondent)
File Number(s):	2023/00406855
Publication restriction:	Nil