Alcock v KEM Projects Pty Ltd (No 2)

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Alcock v KEM Projects Pty Ltd (No 2)

Citation: 

[2023] ACTMC 35

Hearing Date: 

26 July 2023

Decision Date: 

21 September 2023

Before:

Magistrate Temby

Decision: 

See [47]

Catchwords: 

CIVIL LAW - COSTS – where costs follow the event – where plaintiffs enjoyed mixed success on multiple causes of action – where Calderbank offer was refused

Legislation Cited: 

Civil Law (Wrongs) Act 2002 (ACT)

Court Procedures Rules 2006 (ACT) rr 1722, 1723

Limitations Act 1985 (ACT) s 40

Cases Cited: 

Alcock v KEM Projects Pty Ltd & Anor [2020] ACTMC 9

Allen v Wilson (No 2) [2023] ACTSC 102

Calderbank v Calderbank [1975] 3 All ER 333

Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435

Hulanicki v Walton (No 2) [2015] ACTCA 45

Parties: 

Robert Alcock t/as Imaginative Concreting & Construction ( Plaintiff)

Kem Projects Pty Ltd t/as React Roofing ( First Defendant)

Paul Chesterfield ( Second Defendant)

Representation: 

Counsel

Self-represented ( Plaintiff)

G Blank (First Defendant)

G Blank (Second Defendant)

Solicitors

Self-represented ( Plaintiff)

Terracon Legal (First Defendant)

Terracon Legal (Second Defendant)

File Number:

CS 25 of 2015

MAGISTRATE TEMBY:

Introduction

1․On 15 January 2015, the Plaintiff commenced proceedings against the First and Second Defendants.

2․In the course of the proceedings, the Plaintiff advanced four distinct claims, namely:

(a)a claim against the First Defendant in relation to building works at a property in Macquarie that were carried out in 2005 (the Macquarie Claim);

(b)a claim against the First Defendant in relation to buildings works at a property in Lyneham that were carried out in 2010 (the Lyneham Claim); and

(c)a claim against the Second Defendant, in relation to:

(i)    rectification works that were required in relation to a property in Giralang in 2011 (the Giralang Claim); and

(ii)   a request that the Second Defendant appear as an expert witness in seperate proceedings that were brought by the Second Defendant in relation to the Giralang property (the Expert Claim).

3․The substantive hearing of these proceedings was conducted over seven days (27-28 February 2017, 26-27 March 2018, 20-21 September 2018 and 7 March 2019). I note that the Plaintiff sought an adjournment of the hearing on 28 February, which was granted over the Defendants’ objection. The costs of the adjournment were reserved by the Court and are sought by the Defendants.

4․On 1 May 2020, Magistrate Morrison delivered judgment in Alcock v KEM Projects Pty Ltd & Anor [2020] ACTMC 9 (Magistrate Morrison’s decision) which:

(a)dismissed the Macquarie Claim;

(b)dismissed the Lyneham Claim;

(c)rejected the Giralang Claim; and

(d)entered judgment in favour of the Plaintiff with respect to the Expert Claim, in the sum of $10,023.50, comprising:

(i)    damages of $6,600;

(i)    interest in the amount of $3,423.50; and

(e)stated that his Honour would hear from the parties in relation to the question of costs.

5․The nature of each of the claims brought by the…