Bibbo v Nikou & Delatex Pty Ltd (No 2) - [2011] SADC 140

District Court of South Australia
(Civil)
BIBBO v NIKOU & DELATEX PTY LTD (NO 2)
[2011] SADC 140
Reasons for Decision of His Honour Judge Beazley (ex tempore)
25 November 2011
PROCEDURE - COSTS
Building contract – the plaintiff entitled to recover the sum of $137,283.83, inclusive of interest, on his claim – the defendants entitled to recover the sum of $111,181.00 inclusive of interest on their counterclaim.
The plaintiff seeks a determination that a single judgment be entered in favour of the plaintiff against the defendants for the balance owing to him after the deduction of the sum awarded to the defendants on their counterclaim – consideration of the discretion in 6 DCR 224(2).
HELD: Single judgment entered in favour of the plaintiff in the sum of $26,102.83 inclusive of interest, being the balance owing to the plaintiff. The defendants' counterclaim is dismissed.
COSTS
The plaintiff seeks an order for costs in his favour on the final balance judgment, and in respect of two specific applications where costs had been reserved – consideration of the admissibility of offers made by the defendants both prior to and during a mediation between the parties - relevance of s 67C(2) of the Evidence Act and s 32(3) of the District Court Act – consideration of asserted “rule” that the party ultimately successful on the final balance of the claim and counterclaim ought be entitled to an order for the costs of action.
HELD:
1) That save and except for the costs awarded in paragraph 2 hereof, the defendants pay to the plaintiff 50% of the costs of the whole of the action on a party/party basis to be taxed or agreed.
2) That the defendants pay to the plaintiff the costs of and incidental to the application to amend pleadings made on 16 September 2009 on a party/party basis to be taxed or agreed.
District Court Act 1991 s 32(3); Evidence Act 1929 s 67C(2); District Court Civil Rules 2006 6 DCR 224(2), referred to.
Pizimolas v Pizimolas (No 2) [2010] SASC 209; Rayner v Pethick [2006] SASC 70; Tan Hung Nguyen v Luxury Design Homes Pty Ltd [2004] NSWCA 178; Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689; Hudson's Building & Engineering Contracts (Sweet & Maxwell, 1995 11th Edition); Kane Constructions Pty Ltd v Sopov (No 2) [2005] VSC 492; Kane Constructions Pty Ltd v Sopov (No 3) [2006] VSC 32; Badge Constructions Pty Ltd v Penbury Coast Pty Ltd [1999] SASC 6; BMD Major Projects Pty Ltd v Victorian Urban Developments Authority [2007] VSC 409; Miles v Palm Bridge Pty Ltd [2001] WASC 42; [2001] WASCA 334; Formosa v Eminent Forms Pty Ltd [2005] SASC 35; Forlyle Pty Ltd v Tiver [2007] SASC 464, considered.

BIBBO v NIKOU & DELATEX PTY LTD (NO 2)
[2011] SADC 140
Introduction

On 27 October 2011, I published my Reasons detailing the bases for concluding that the…

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.

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Details

Case: [2011] SADC 140
Decision Date: 25 November 2011

CaseChat Overview and Summary

The case of Bibbo v Nikou & Delatex Pty Ltd (No 2) involves a dispute arising from a building contract. The plaintiff, Mr Bibbo, sought to recover a sum of money from the defendants, Nikou and Delatex Pty Ltd, as well as interest. Simultaneously, the defendants counterclaimed for a different sum, also inclusive of interest. The matter was heard in the court, which was tasked with determining the financial liabilities between the parties.

The primary legal issues before the court included whether Mr Bibbo was entitled to recover the amount claimed, and if so, the exact sum. Additionally, the court had to assess the validity of the defendants' counterclaim and determine the amount, if any, to which they were entitled. The court's analysis involved a careful examination of the contractual obligations, the performance of those obligations by both parties, and the relevant legal principles governing building contracts and counterclaims.

In its decision, the court found that Mr Bibbo was entitled to recover the sum of $137,283.83, inclusive of interest, on his claim. Conversely, the court also ruled that the defendants were entitled to recover the sum of $111,181.00, inclusive of interest, on their counterclaim. The court exercised its discretion under 6 DCR 224(2) to consider the appropriate orders regarding the final judgment, ensuring that the balance owing to Mr Bibbo after deducting the sum awarded to the defendants on their counterclaim was accurately reflected.

The final orders of the court mandated that a single judgment be entered in favour of Mr Bibbo against the defendants for the balance owing to him, which was determined after the deduction of the sum awarded to the defendants on their counterclaim. This decision provided a clear resolution to the financial disputes between the parties, reflecting the court's thorough analysis of the contractual obligations and the performance by both sides.

Orders