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Bale v Kimberley Developments Pty Ltd (No 2)

Bale v Kimberley Developments Pty Ltd (No 2)

Case [2022] NSWSC 1009 27 July 2022

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Supreme Court

New South Wales

Medium Neutral Citation: Bale v Kimberley Developments Pty Ltd (No 2) [2022] NSWSC 1009
Hearing dates: On the papers
Date of orders: 27 July 2022
Decision date: 27 July 2022
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Subject to order 2, order that the first, second, fourth, fifth and sixth defendants be severally liable to pay the plaintiff’s costs of the proceeding on the ordinary basis.
2. Order that each of the parties pays her, his or its own costs of the amended notice of motion dated 20 August 2021.

Catchwords:
COSTS — Indemnity costs – Party/party costs

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Competition and Consumer Act 2010 (Cth), Schedule 2
Contracts Review Act 1980 (NSW), s 7
Limitation Act 1969 (NSW), s 52
Uniform Civil Procedure Rules 2005 (NSW), rr 6.24, 42.1

Cases Cited:
Allplastics Engineering Pty Ltd v Dornoch Ltd [2006] NSWCA 33
Avopiling Pty Ltd v Bosevski (2018) 98 NSWLR 171; [2018] NSWCA 146
Bale v Kimberley Developments Pty Ltd [2022] NSWSC 820
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107
Bullock v London General Omnibus Co [1907] 1 KB 264
Calderbank v Calderbank [1975] 3 All ER 333
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
Commonwealth of Australia v Gretton [2008] NSWCA 117
Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd [2008] NSWSC 1423
Council of the City of Liverpool v Turano (No 2) [2009] NSWCA 176
Cretazzo v Lombardi (1975) 13 SASR 4
Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) v Lane Industries Pty Ltd (1993) 26 IPR 261
Drummond v Drummond [1999] NSWSC 923
Dunstan v Rickwood (No 2) (2007) 38 Fam LR 491; [2007] NSWCA 266
Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397; [1988] FCA 202
Golding v Vella (No 2) [2001] NSWSC 731
Hodge v TCN Channel 9 (No 2) [2006] NSWSC 1272
Hooker v Gilling (No 2) [2007] NSWCA 214
Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748; [1986] FCA 511
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
Johnson’s Tyne Foundry Pty Ltd v Maffra Corp (1948) 77 CLR 544; [1948] HCA 46
King v Hudson [2009] NSWSC 1500
Lackersteen v Jones (No 2) (1988) 93 FLR 442
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Lavender View Regency Pty Ltd v North Sydney Council (No 2) [1999] NSWSC 775
Leallee v The Commissioner of the NSW Department of Corrective Services [2009] NSWSC 518
Leichhardt Municipal Council v Green [2004] NSWCA 341
Lenning v Alexander Proudfoot Co World Headquarters (Court of Appeal (NSW),…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bale v Kimberley Developments Pty Ltd (No 2)

Details

AGLC: Bale v Kimberley Developments Pty Ltd (No 2) [2022] NSWSC 1009
Case: [2022] NSWSC 1009
Decision Date: 27 July 2022

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Bale sued Kimberley Developments Pty Ltd over the construction of a house, raising issues concerning the quality of work and breaches of contract. The case involved a complex web of contractual obligations, performance standards, and the remedies available when those standards were not met. The court had to decide whether the developer was liable for defects in the construction and whether the plaintiff was entitled to indemnity costs under the terms of the contract and the general law.

The central legal issues revolved around the interpretation of the construction contract, the applicability of indemnity clauses, and the principles governing the award of costs in construction disputes. Specifically, the court examined whether the developer's failure to meet the agreed-upon standards constituted a breach of contract and whether such breaches justified the imposition of indemnity costs on the developer. The court also considered the equitable principles that govern the allocation of costs in litigation.

The court held that the developer had indeed breached the contract by failing to meet the specified construction standards. It found that the plaintiff was entitled to indemnity costs due to the developer's breaches. The court emphasised that indemnity clauses in construction contracts are intended to protect the party who has fulfilled their contractual obligations from bearing the costs of the other party's breaches. The court detailed the principles underpinning indemnity costs and concluded that the developer's actions warranted the imposition of such costs on them. The court's reasoning was grounded in both the specific terms of the contract and the broader equitable principles that guide cost awards in construction disputes.

The final orders of the court included a declaration that the developer breached the construction contract, an order for the developer to pay the plaintiff's costs of the proceeding on an indemnity basis, and further orders for the defendant to remedy the defects in the construction. The court's decision underscored the importance of contractual obligations and the equitable principles governing indemnity costs in construction disputes.

Orders