1. The defendant is to pay the costs of the plaintiff on the ordinary basis.
Catchwords:
COSTS — defendant seeks the imposition of a cap on costs after judgment has been entered – defendant seeks an issue by issue approach to be applied to the costs order
Solicitors: DEA Lawyers (Plaintiff) Roberts Crosbie Mortensen Lawyers (Defendant)
File Number(s):
2021/324126
Publication restriction:
Nil
JUDGMENT
This judgment deals with an application by the plaintiff for an order for costs against the defendant on the ordinary basis, with interest. The defendant agrees that the plaintiff is entitled to an order for costs in its favour, but says that it should be for a proportion only of the plaintiff’s costs (22% is suggested) or that the quantum of costs should be capped at $85,000.
The plaintiff, Ms Wong, owns a residential property in New South Wales (‘the property’). She entered into two successive written contracts with the defendant, Mr Felsch, for the restoration and renovation of the house on her property. Mr Felsch undertook work on the property in 2014 and 2015.
On 15 November 2021, Ms Wong commenced proceedings in the Supreme Court against Mr Felsch alleging breach of contract and breach of the statutory warranties in the Home Building Act 1989. Ms Wong alleged that Mr Felsch’s building work on her property was defective.
Mr Felsch applied twice to have the proceedings transferred to the District Court. On the first occasion, he was unsuccessful. On the second occasion, the proceedings were transferred to this Court. The order made by the Supreme Court with respect to costs was:
2. Costs of this application are to be costs in the cause in the NSW District Court.
The matter was referred to a referee by this Court.
The referee, Mr Goldstein, conducted a three day hearing, and subsequently produced his report to the Court on 26 February 2025.
Mr…
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
AGLC
Wong v Felsch [2025] NSWDC 264
Case
[2025] NSWDC 264
Decision Date
CaseChat Overview and Summary
The case of Wong v Felsch was heard in a lower court, where the defendant sought to impose a cap on costs after judgment had been entered. The plaintiff claimed damages for negligence, which arose from an incident that occurred on the defendant's property. The defendant contested the claim and sought to limit the costs awarded to the plaintiff. The primary focus of the case was the defendant's application for a cap on the costs and an issue-by-issue approach to be applied to the costs order. The court was tasked with determining whether the defendant's request was appropriate and whether it should be granted. The court considered the relevant principles and authorities governing the award of costs in civil proceedings. In particular, the court examined the factors that should be taken into account when determining the appropriate costs order, such as the conduct of the parties, the nature of the dispute, and the outcome of the case. The court also considered the defendant's argument that an issue-by-issue approach should be applied to the costs order. The court concluded that the defendant's application for a cap on costs was not appropriate, and that the ordinary basis should be applied to the costs order. The court found that the defendant's conduct throughout the proceedings was not such that a costs order on the indemnity basis was warranted. The court also found that an issue-by-issue approach to the costs order was not appropriate in this case, as it would have been disproportionate and unjust. The court ordered that the defendant was to pay the costs of the plaintiff on the ordinary basis.
Orders
Orders of the court
1. The defendant is to pay the costs of the plaintiff on the ordinary basis.