Australia, July 24 -- New South Wales Land and Environment Court issued text of the following judgement on June 24:

1. This decision concerns what costs orders should be made both with respect to the appeal proceedings and with respect to the proceedings at first instance.

2. On 24 January 2025 we published our decision in the substantive appeal and made directions for the parties to make submissions as to what costs orders should be made. Those submissions have now been received.

3. In the directions we directed the parties to include a submission as to whether the Appeal Panel may determine costs on the papers and, by so doing, dispense with a further hearing.

4. We are satisfied that we are able to determine the issues now before us by considering the submissions and other material lodged by the parties and we therefore intend to make an order dispensing with a further hearing.

Substantive Appeal Decision and the Cross Appeal

5. As stated above, we published our decision on 24 January 2025. In that decision we described the Appellants and Cross-Respondents as the Homeowners, and the Respondent and Cross-Appellant as the Builder. We adopt the same descriptions in this decision.

6. The result of our decision was to uphold the Homeowners' appeal. We set aside the order of the Tribunal at first instance requiring the Homeowners to pay to the Builder the sum of $86,781.04 and a further sum, calculated at the rate of $33.98 per day, and in the place of those orders made an order for the Homeowners to pay to the Builder the sum of $18,223. A work order made at first instance requiring the Builder to undertake certain work was not an issue in the appeal.

7. The appeal largely concerned whether the Builder should pay damages to the Homeowners in respect of the Builder's failure to complete certain sewer work. In the appeal we held that the Builder should have undertaken such work and that the Homeowners should be entitled to an order for compensation in the sum of $41,757. We also held that the Builder was not entitled to liquidated damages in the sum of approximately $31,000. It was the result of these two decisions that the order in favour of the Builder at first instance requiring the Homeowners to pay $86,781.04 was reduced to an order requiring the Homeowners to pay to the Builder the sum of $18,223.

8. The Tribunal at first instance published a separate decision on costs. In the Builder's application the Tribunal ordered the Homeowners to pay the Builders costs on the ordinary basis and in the Homeowners application the Tribunal ordered the Builder to pay 50% of the Homeowners costs. The Builder appealed the order requiring it pay 50% of the costs of the Homeowners. We upheld the appeal on the basis that having substantially altered the amount due to the Builder in the substantive appeal the costs orders made at first instance should be reconsidered.

9. Having regard to the above background we now consider the submissions of the parties with respect to costs.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1978bbb04c1eb75939b3eb79)

Disclaimer: Curated by HT Syndication.