ADH Plumbing Pty Ltd v Glenashka Pty Ltd as Trustee of the Colin Henry Wilson Trading Trust trading as Wilsons Betamix Goonumbla Quarry and Wilsons Betamix Concrete (No 2)

In the matter of ADH Plumbing Pty Ltd versus Glenashka Pty Ltd as Trustee of the Colin Henry Wilson Trading Trust trading as Wilsons Betamix Goonumbla Quarry and Wilsons Betamix Concrete (No 2), the court addressed the issue of indemnity costs and liability for costs incurred by a third party. The plaintiff, ADH Plumbing, sought damages for alleged negligence and breach of contract, while the defendant, Glenashka, denied liability and sought to recover costs on an indemnity basis from the plaintiff and a third party, K & H Geotechnical Services Pty Ltd. Additionally, Glenashka applied for a costs order against a director of the plaintiff, Adam Hewes.

The primary legal issues involved the interpretation of Calderbank offers and the application of section 98(2) of the Civil Procedure Act 2005 (NSW). The court had to determine whether the Calderbank offer by K & H Geotechnical Services Pty Ltd warranted an indemnity costs order and if the director, Adam Hewes, could be held jointly and severally liable for the defendant's costs. The court also considered the propriety of allocating the costs of the application to the parties involved.

The court found that the Calderbank offer did not meet the threshold for an indemnity costs order, rejecting the application by K & H Geotechnical Services Pty Ltd. However, the court held that Adam Hewes was jointly and severally liable for the defendant's costs, in line with section 98(2) of the Civil Procedure Act 2005 (NSW). The court held that the costs of the application itself were to be borne by the plaintiff and the defendant equally, with liberty to apply for a review within seven days.

The final orders of the court reflect these findings, rejecting the indemnity costs application from K & H Geotechnical Services Pty Ltd and imposing joint and several liability on Adam Hewes for the defendant's costs. The court also directed that the parties were to bear their own costs for the application, with the option to seek a review within the specified timeframe.