Ashell Homes Constructions Pty Ltd v Kobus (No 2)

Case [2022] ACTSC 359


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Ashell Homes Constructions Pty Ltd v Kobus (No 2)

Citation:

[2022] ACTSC 359

Hearing Dates:

16 December 2022

DecisionDate:

21 December 2022

Before:

McWilliam AsJ

Decision:

(1)  Judgment is entered for the defendants in the sum of $25,089.35 plus interest in the sum of $2,798.18.

(2)  The Registrar General is to remove Caveat no. 3032521 from the title of the land identified as Unit 4, Block 27 Section 37 Chifley in the Australian Capital Territory.

(3)  The plaintiff is to do all things necessary to facilitate the removal of the caveat pursuant to order 2.

(4)  The plaintiff is to pay 75% of the defendants’ costs of the proceeding up to 22 November 2022.

(5)  The parties are to pay their own costs from 22 November 2022.

Catchwords:

JUDGMENTS & ORDERS – whether court should provide further reasons after judgment for finding as to quantum of damages.

COSTS – whether plaintiff should pay indemnity costs – whether a proposal for completion of a building project sent before proceeding commenced constituted a Calderbank offer.

Legislation Cited:

Court Procedures Act 2004 s 5A, Sch 2

Court Procedures Rules 2006 rr 1401, 1613, 1705

Cases Cited:

AK v Western Australia [2008] HCA 8; 232 CLR 438

Anderson v Canaccord Genuity Financial Ltd (No 2) [2022] NSWSC 649
Ashell Homes Constructions Pty Ltd v Kobus [2022] ACTSC 323
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Bellgrove v Eldridge [1954] HCA 36; 90 CLR 613
Calderbank v Calderbank [1975] 3 All ER 333
Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8
Conroy's Smallgoods Pty Ltd & Anor V Channel Seven Adelaide Pty Ltd [2007] SASC 76
Consolidated Lawyers Ltd v Abu-Mahmoud [2016] NSWCA 4
DL v The Queen [2018] HCA 26; 266 CLR 1
Hunter v Transport Accident Commission [2005] VSCA 1; 43 MVR 130
Hunter v Transport Accident Commission [2005] VSCA 1; 43 MVR 130
Nova Builders Pty Ltd v Civil & Civic Corporation Pty Ltd [2022] ACTSC 209
Priestley v Priestley (No 2) [2016] NSWSC 1259
RobinsonvHarman [1848] 1 Ex 850; 154 ER 363, 365
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Southwell v Staite (No 2) [2019] ACTSC 83
State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; 236 CLR 272
Wentworth v Woollahra Municipal Council (1982) 149 CLR 672

Whisprun Pty Ltd v Dixon [2003] HCA 48; 200 ALR 447

Parties:

Ashell Homes Constructions Pty Ltd ( Plaintiff)

Jonathan Kobus (First Defendant)

Amy Elleway (Second Defendant)

Representation:

Counsel

B Buckland ( Plaintiff)

D Robens ( Defendants)

Solicitors

O’Connor Harris ( Plaintiff)

Harrington Hall ( Defendants)

File Number:

SC 45 of 2020

McWilliam AsJ

  1. On 22 November 2022, judgment was delivered in relation to a building dispute involving competing claims by the parties against…

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AGLC
Ashell Homes Constructions Pty Ltd v Kobus (No 2) [2022] ACTSC 359
Case
[2022] ACTSC 359
Decision Date

CaseChat Overview and Summary

Ashell Homes Constructions Pty Ltd sued Kobus, and the case returned to the court for the determination of quantum of damages. The Federal Circuit and Family Court of Australia was required to determine whether it should provide further reasons for its findings as to quantum of damages, whether the plaintiff should pay indemnity costs, and whether a proposal for completion of a building project sent before the proceeding commenced constituted a Calderbank offer. The court found that further reasons were not necessary and that the proposal did not constitute a Calderbank offer. The court also found that the plaintiff should pay 75% of the defendants’ costs of the proceeding up to 22 November 2022. The plaintiff was ordered to pay 75% of the defendants’ costs of the proceeding up to 22 November 2022, and the parties were to pay their own costs from that date. Judgment was entered for the defendants in the sum of $25,089.35 plus interest, and the plaintiff was to do all things necessary to facilitate the removal of a caveat from the title of the land.

Orders

Orders of the court

(1) Judgment is entered for the defendants in the sum of $25,089.35 plus interest in the sum of $2,798.18.

(2) The Registrar General is to remove Caveat no. 3032521 from the title of the land identified as Unit 4, Block 27 Section 37 Chifley in the Australian Capital Territory.

(3) The plaintiff is to do all things necessary to facilitate the removal of the caveat pursuant to order 2.

(4) The plaintiff is to pay 75% of the defendants’ costs of the proceeding up to 22 November 2022.

(5) The parties are to pay their own costs from 22 November 2022.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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