Boss Constructions (NSW) Pty Ltd v Rohrig (NSW) Pty Ltd [No.2]

[2019] NSWSC 436

Supreme Court

New South Wales

Medium Neutral Citation:	Boss Constructions (NSW) Pty Ltd v Rohrig (NSW) Pty Ltd [No.2] [2019] NSWSC 436
Hearing dates:	On the Papers
Decision date:	12 April 2019
Jurisdiction:	Equity - Technology and Construction List
Before:	Hammerschlag J
Decision:	No order as to costs
Catchwords:	COSTS - claim and cross-claim dismissed - defendant /cross-claimant makes Calderbank Offer on the Friday preceding the commencement of the trial offering dismissal of the claim and $50,000 to be set off against a pre-existing costs order in its favour, the offer to be open until 10.00am on the day of the trial HELD - in substance there is no event because both parties won and lost and plaintiff/cross-defendant did not act unreasonably in not accepting the Calderbank Offer - No order as to costs
Category:	Costs
Parties:	Boss Constructions (NSW) Pty Ltd – First Plaintiff/Cross-Defendant Nicholas Bobos – Second Plaintiff Rohrig (NSW) Pty Ltd – Defendant/Cross-Claimant
Representation:	Counsel: N Bobos – Director of First Plaintiff/Cross-Defendant, with leave, and for himself M A Ashhurst SC and L Corbett – Defendant / Cross‑Claimant Solicitors: BCP Lawyers & Consultants – Defendant / Cross‑Claimant
File Number(s):	2018/289865

EX TEMPORE JUDGMENT

Introduction

1. HIS HONOUR:   On 5 April 2019 I gave judgment dismissing the plaintiff’s claim and the defendant’s cross-claim. The question of costs remains.

2. I have received written submissions from both parties.

3. Boss’s position is that Rohrig should pay all of its costs. There is no sound basis for this.

4. Rohrig’s position is that Boss should pay 75 per cent of its costs up to and including 15 March 2019 and on an indemnity basis thereafter on the footing that Rohrig’s cross-claim occupied 20-30% of the four day hearing and Boss occupied the balance of the time. It puts that the hearing time was extended because Boss choose not to engage lawyers. For indemnity costs it relies on a letter said to be a Calderbank Offer directed to Boss on 15 March 2019, that is the Friday before the trial commenced. It offered $50,000 to be set off against an order for costs which Rohrig has against Boss, and the dismissal of the proceedings.

5. The offer was open until 10.00am on the first day of the trial.

6. I do not consider that Boss’ failure to accept this offer was unreasonable. It came too late and offered, in effect, a capitulation in the proceedings and a credit towards an existing costs order.

7. The central question in both claims was the terms of the contract. This occupied the vast bulk of the case.

8. Looked at as a matter of substance there was no event in this case.

9. Both parties lost and both parties won.

10. In my view, the appropriate exercise of my discretion as to costs, is to make no order, to the intent that each party shall pay its own.

************

Decision last updated: 16 April 2019