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
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This is an application to vary the costs order made in the substantive decision.
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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.
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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.
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The applicants are successors in title who purchased the…
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- Case
- [2025] NSWCATCD 77
- Decision Date
CaseChat Overview and Summary
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
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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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