The Owners - Strata Plan 93804 v Hamilton (No. 2)

The case between The Owners – Strata Plan 93804 and Hamilton involved a dispute arising from construction works carried out by the defendants, Hamilton & Marino Builders Pty Limited, H& M Constructions (NSW) Pty Limited, and Oriosis Garden Pty Limited. The plaintiffs, who were the owners of a strata title, alleged that the defendants had failed to perform the construction works in accordance with the contractual obligations, resulting in defects and damages to the property. The matter was heard in the Civil and Administrative Tribunal of New South Wales.

The primary legal issue the court had to address was whether the defendants' conduct during the proceedings constituted disentitling conduct, warranting an award of costs against them. Specifically, the court needed to determine if the defendants' failure to engage in settlement discussions or make offers of compromise could be considered as disentitling conduct under the relevant legislation. The court also had to assess the merits of the plaintiffs' claims to ensure that the costs were awarded justly.

In rendering its decision, the court found that the defendants' conduct during the proceedings was indeed disentitling. The court noted that the defendants had not made any offers of settlement, which was a significant factor in their disentitlement to costs. The court emphasised that the defendants' failure to attempt to resolve the dispute amicably and their unwillingness to negotiate in good faith constituted disentitling conduct. Consequently, the court ordered that the defendants were liable for the plaintiffs' costs of the proceedings. The court further directed that if the parties could not agree on the quantum of costs, the costs would be assessed according to the legal costs legislation.

In summary, the court held that the defendants' disentitling conduct justified an order for them to pay the plaintiffs' costs. The defendants were directed to pay the costs on the ordinary basis, with the option of having the costs assessed if they could not reach an agreement. This decision underscores the importance of engaging in good faith negotiations and the potential consequences of failing to do so in legal proceedings.