The proportionality test from Bellgrove v Eldridge, as refined by Tabcorp and Stone v Chappel, applies to building defect claims such that where the risk of harm from a deficiency is insubstantial, the cost of proposed remedial works may be disproportionate to the benefit achieved and the claim will be dismissed. A contractual representation as to skill and expertise in a building contract is not established as misleading or deceptive under s 52 of the TPA merely by proof of defects in the work; a more substantial degree of incompetence must be demonstrated. In construction disputes, the costs discretion remains unfettered and a percentage approach to costs is permissible where the successful party did not succeed on all issues.
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