Parry-Husbands v Roffe (No 2)

Case [2024] NSWCATCD 16


Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Parry-Husbands v Roffe (No 2) [2024] NSWCATCD 16
Hearing dates: On the papers
Date of orders: 15 January 2024
Decision date: 15 January 2024
Jurisdiction:Consumer and Commercial Division
Before: G Sarginson, Senior Member
Decision:

(1) An oral hearing is dispensed with under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW).

(2) The stay granted by reason of order 2 of the Tribunal dated 1 December 2023 is lifted.

(3) The respective costs applications of the parties are dismissed.

(4) There is no order as to costs in respect of the application to transfer the NCAT proceedings to the District Court of NSW.

(5) Costs of the transfer application are costs in the cause of the transferred proceedings.

Catchwords:

COSTS---Transfer of proceedings from NCAT to District Court---r 38 Civil and Administrative Tribunal Rules 2014---Calderbank offer---Whether unreasonably rejected---Whether cost order should be made in respect of the transfer of proceedings

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Civil Procedure Act 2005 (NSW)

Home Building Act 1989 (NSW)

Cases Cited:

Boland v MGF Holdings Pty Ltd [2022] NSWSC 451

Elite Protective Personel Pty Ltd v Salmon (No 2) [2007] NSWCA 373

Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Smith v Baker [2022] NSWSC 1521

State of NSW & Anor v The Broken Hill Town Employees Union on behalf of employees [2022] NSWSC 961

State of NSW v Stanley [2007] NSWCA 330

SW v The Sydney Children’s Hospital’s Network t/as Westmead Children’s Hospital

Swan v All Construction Engineering Pty Ltd [2021] NSWSC 665

Tati v Stonewall Hotel Pty Ltd (No 2) [2012] NSWCA 124

Texts Cited:

Judicial Commission of NSW Civil Bench Book-Costs

Category:Costs
Parties: Howard Keith Parry-Husbands (First Applicant)
Sharyn Ann Parry-Husbands (Second Applicant)
Danielle Phillipa Geraldine Roffe (First Respondent)
Yair Nassi (Second Respondent)
Representation:

Counsel:
J. Pokoney (Applicants)
P. Wiggins (Respondents)

Solicitors:
CCS Legal Pty Ltd (Applicants)
SGJ Law (Respondents)
File Number(s): 2023/00400405 (Previously HB 23/16800)
Publication restriction: Nil

REASONS FOR DECISION

  1. This is a cost application arising from a decision of the Tribunal to transfer proceedings brought in the Tribunal by current owners of a residential property against the respondents under the Home Building Act 1989 (NSW) (HB Act) to the District Court of NSW.

  2. The application to transfer proceedings was contested, with both parties briefing Counsel.

  3. The Tribunal gave a detailed written judgment dated 1 December 2023 setting out its reasons as to why the proceedings were transferred to the District Court under cl. 6 of sch. 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

  4. This cost decision is to be read in conjunction with the reasons expressed in the decision of 1 December 2023.

  5. Both parties have filed and served costs submissions (which included documentary material including a Calderbank offer by…

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Details
AGLC
Parry-Husbands v Roffe (No 2) [2024] NSWCATCD 16
Case
[2024] NSWCATCD 16
Decision Date

CaseChat Overview and Summary

The respondents, Parry-Husbands, sought to transfer proceedings from the NCAT to the District Court, following the grant of a stay of the NCAT proceedings by the Tribunal. The applicants, Roffe, opposed the transfer and the respondents’ application for costs in relation to the transfer. The respondents submitted that the applicants unreasonably rejected a Calderbank offer in relation to the transfer of the proceedings and that an order for costs should be made as a result. The applicants denied that they unreasonably rejected the Calderbank offer and submitted that the transfer application should be dismissed on other grounds.

The court was required to determine whether the applicants unreasonably rejected a Calderbank offer in relation to the transfer of the proceedings and whether an order for costs should be made as a result. The court was also required to determine whether the transfer application should be dismissed on other grounds. The court noted that the applicants had not unreasonably rejected the Calderbank offer and that the transfer application should be dismissed on other grounds. The court found that there was no basis for an order for costs in relation to the transfer application.

The court found that the applicants had not unreasonably rejected the Calderbank offer. The court found that the applicants had provided a detailed and reasoned response to the offer and that the offer was not reasonable in the circumstances. The court found that the transfer application should be dismissed on other grounds. The court found that the transfer application was an abuse of process and that the respondents had acted unreasonably in bringing the application. The court found that there was no basis for an order for costs in relation to the transfer application.

The court dismissed the respondents’ application for costs in relation to the transfer of the proceedings to the District Court. The court lifted the stay of the NCAT proceedings and dismissed the respective costs applications of the parties. The court found that the costs of the transfer application were costs in the cause of the transferred proceedings.

Orders

Orders of the court

(1) An oral hearing is dispensed with under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW).

(2) The stay granted by reason of order 2 of the Tribunal dated 1 December 2023 is lifted.

(3) The respective costs applications of the parties are dismissed.

(4) There is no order as to costs in respect of the application to transfer the NCAT proceedings to the District Court of NSW.

(5) Costs of the transfer application are costs in the cause of the transferred proceedings.

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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