Boden v Gleeson [2013] NSWCA 447

  1. THE COURT: These are the Court's reasons for refusing the application for leave at the conclusion of oral argument.
  1. The application for leave concerns costs. The magnitude of those costs is unknown, although the argument in the court below concerning them (and interest) seems to have taken six days, following the adoption of an expert's reports. Originally, a modest claim and cross-claim had been commenced in the Consumer, Trader and Tenancy Tribunal (CTTT) in 2007, concerning a building contract entered into more than a decade ago.
  1. It is convenient to call the applicants for leave in this Court, who were the cross-claimants in the District Court, the Owners, and the respondents in this Court, who were plaintiffs in the District Court, the Builder. For some reason the second respondent was joined although she seems not to have been a contracting party, but nothing turns on that.
  1. The dispute arose out of a building contract for alterations and additions to a house in Mosman in 2003. Practical completion was certified on 3 June 2005, but on 24 November 2005 a list of defective works was issued, some but not all of which were rectified by the Builder. In June 2007, the Builder sought in the CTTT:
(1)   outstanding contract moneys, being the balance of the retention, in the amount of $42,000; (2)   delay damages in the amount of $48,622, and (3)   interest and costs .
  1. On 7 August 2007, the Owners, by "response/cross-application" in the CTTT:
(1)   denied liability for the Builder's claim; (2)   sought damages for the rectification of defects, and (3)   sought $16,000 for liquidated damages.
  1. The litigation proceeded for almost two years with no determination in the CTTT. The parties exchanged their evidence by the middle of 2008, and the proceedings were listed on 3 November 2008 with an estimate of three days. That date was vacated, further evidence was served, and the proceedings were listed for hearing on 16 March 2009 with an estimate of five days. On 16 March 2009, on the Owners' application, the hearing was vacated so as to permit them to have the proceedings transferred to the District Court so that they could pursue a claim against an engineer in respect of an allegedly defective blade wall. The Builder neither opposed nor consented to the transfer. The CTTT ordered the Owners to pay the Builder's costs thrown away by reason of the vacation...
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