BCFK Holdings Pty Ltd v Rork Projects Pty Ltd (No 2)

[2023] NSWSC 185

Supreme Court

New South Wales

Medium Neutral Citation:

BCFK Holdings Pty Ltd v Rork Projects Pty Ltd (No 2) [2023] NSWSC 185

Hearing dates:

24 February 2023

Decision date:

03 March 2023

Jurisdiction:

Equity - Technology and Construction List

Before:

Stevenson J

Decision:

That there be no order as to costs

Catchwords:

COSTS – whether plaintiff should have its costs in circumstances where plaintiff successful but on a basis of a submission as to whether payment claim had been effectively served opposite to the position maintained at the time

Legislation Cited:

Building and Construction Industry Security of Payment Act 1999 (NSW)

Cases Cited:

A v The Governor of Arbour Hill Prison [2006] 4 IR 88

BCFK Holdings Pty Ltd v Rork Projects Pty Ltd [2022] NSWSC 1706

Cadder v Her Majesty’s Advocate [2010] UKSC 43; [2010] 1 WLR 2601

Esso Australia Resources Australia Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67

Lazarus v Independent Commissioner Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37

Piety Constructions Pty Ltd v Hville FCP Pty Ltd [2022] NSWSC 1318

Roberts v White [1999] NSWCA 12

Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383

Category:

Costs

Parties:

BCFK Holdings Pty Ltd (Plaintiff)
Rork Projects Pty Ltd (First Defendant)
Navid King (Second Defendant)
Adjudicate Today Pty Ltd (Third Defendant)

Representation:

Counsel:
D S Weinberger (Plaintiff)
F Corsaro SC (First Defendant)

Solicitor:
Pikes & Verekers Lawyers (Plaintiff)
Brown Ward King (First Defendant)
Richard Green Construction Lawyers (Second and Third Defendants)

File Number(s):

2022/309491

JUDGMENT

1. I gave judgment in this matter on 14 December 2022. ^[1] I shall use the same abbreviations here.

   1. BCFK Holdings Pty Ltd v Rork Projects Pty Ltd [2022] NSWSC 1706.

2. My conclusions were:

1. that the Principal’s contention that the Payment Claim had been served on 18 July 2022 should be upheld; ^[2]

2. to reject the Builder’s claim that it had suffered detriment by reason of the Principal’s alleged misleading or deceptive conduct; ^[3]

3. to uphold the Principal’s contentions concerning the effect of s 13(1C) of the Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Act”); ^[4]

4. to conclude that the Adjudication Determination should therefore be quashed; ^[5] and

5. to reject the Principal’s contentions concerning the reasons given by the Adjudicator. ^[6]

   2. Ibid at [32].

   3. Ibid at [56].

   4. Ibid at [70].

   5. Ibid at [72].

   6. Ibid at [96]; in view of my earlier conclusions, this conclusion was not dispositive.

3. As to costs, I said:

“As to costs, although the Principal has been successful, that success is born of its maintenance of an argument before me concerning service of the First Payment Claim which is the opposite of the claim it made when it served the First Payment Schedule. In those circumstances, I will hear submissions as to why, notwithstanding its success, it should not pay the Builder’s costs of the proceedings. The parties should agree on a timetable for written submissions on the topic.”^[7]

7. Ibid at [100].

4. I have now received submissions from the parties about costs.

5. The Principal’s submissions were directed, primarily, to the proposition that it had succeeded on the issues to which I have referred. The submissions did not engage with the fact that, in order to succeed, it ran an argument concerning service of the First Payment Claim that was the opposite of that which it maintained at the time. When it served the First Payment Schedule, it contended that the First Payment Claim had not been effectively served. At the hearing, it argued the opposite; that it had been effectively served. As I said in my earlier judgment, this amounted to a volte-face by the Principal. ^[8]

   8. Ibid at [19].

6. Had the Principal accepted, at the time, that the First Payment Claim had been effectively served, and not taken the point that it had not been served as permitted by s 13 of the Act despite being fully aware of the contents, there would have been no need for the Builder to serve the Second Payment Claim.

7. The result would have been that the Adjudicator would have been called upon to determine the issues that I discussed in the earlier judgment, including the “final” payment claim argument to which I referred. ^[9]

   9. Ibid at [73]-[85].

8. I see no reason to conclude that an adjudication made solely in reference to those matters would have been liable to be quashed.

9. It is true, as I held, that it was obvious to the Builder that the Principal had in fact seen the First Payment Claim and that the Builder,^[10] with legal advice, made a judgment as to whether it should serve a further payment claim. ^[11]

   10. Ibid at [32].

   11. Ibid at [47]-[50].

10. But the position would surely have been different had the Principal not disputed that there had been effective service.

11. It is also true that the Principal’s decision in July 2022 was made before I delivered judgment in Piety Constructions Pty Ltd v Hville FCP PtyLtd. ^[12] But, assuming my decision in Piety is correct, ^[13] it merely stated the law as it must be taken always to have been,^[14] as the Principal’s argument in this case assumes.

    12. [2022] NSWSC 1318; an appeal from which is now the subject of a reserved judgment in the Court of Appeal.

    13. Judgment is reserved on an appeal to the Court of Appeal.

    14. For example, Lazarus v Independent Commissioner Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 at [133] (Leeming JA); Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 at [57] (Basten JA, citing the endorsement in Cadder v Her Majesty’s Advocate [2010] UKSC 43; [2010] 1 WLR 2601 at [101] (Rodger LJ), endorsing Murray CJ in A v The Governor of Arbour Hill Prison [2006] 4 IR 88); Roberts v White [1999] NSWCA 12 at [45] (Mason P, Spigelman CJ, Priestley and Handley JJA agreeing); and Esso Australia Resources Australia Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67 at [164] (Callinan J).

12. In those circumstances, my conclusion is that the justice of the case requires that, notwithstanding the Principal’s success before me, it should not have its costs of the proceedings and that there should be no order as to costs.

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Endnotes