Browning v Bitupave Limited (No 2) - [2008] NSWSC 81

CITATION: Browning v Bitupave Limited (No 2) [2008] NSWSC 81

HEARING DATE(S): 12 February 2008

JUDGMENT DATE :
14 February 2008

JUDGMENT OF: Harrison J

DECISION: 1. Verdict for the plaintiff against the first defendant for $2,040,000 (i.e. $2,400,000 less 15% for contributory negligence).
2. Order the first defendant to pay the plaintiff's costs.
3. Judgment for the second defendant on the plaintiff's claim.
3A. Order the plaintiff to pay the second defendant's costs of defending the plaintiff's claim against the second defendant.
3B. Order the first defendant to indemnify the plaintiff in respect of the costs incurred by the plaintiff in accordance with order 3A.
4. Dismiss the first cross-claim with costs on an indemnity basis.
5. Judgment for the second cross-claimant on the second cross-claim with costs on an indemnity basis.
6. Declare that the third cross-claimant is entitled to be indemnified by Boral Insurance Pty Limited in respect of all or any costs incurred or thrown away by the third cross-claimant in its defence of the plaintiff's claim and the first cross-claim and in its prosecution of the second cross-claim.
7. Order the third cross-defendant to pay the third cross-claimant's costs of the third cross-claim on an indemnity basis.

CATCHWORDS: COSTS - Bullock order - whether joinder of a successful defendant the result of conduct of an unsuccessful defendant - plaintiff ordered to pay costs of successful defendant incurred in defending plaintiff's claim but with indemnity for such costs from unsuccessful defendant

LEGISLATION CITED: Browning v Bitupave Limited [2008] NSWSC 19
Fennell v Supervision and Engineering Services Holdings Pty Ltd and Santos Ltd (1988) 47 SASR 6
Gould v Vaggelas (1984) 157 CLR 215
Roads and Traffic Authority (NSW) v Palmer (No 2) [2005] NSWCA 140
Schipp v Cameron (Supreme Court of New South Wales, Einstein J, 12 October 1998, unreported)

CATEGORY: Consequential orders

PARTIES: Annette Trudie Browning (Plaintiff)
Bitupave Limited t/as Boral Asphalt (First Defendant)
Cessnock City Council (Second Defendant)
Boral Insurance Pty Limited (Third Cross Defendant)

FILE NUMBER(S): SC 20137 of 2005

COUNSEL: P Doherty SC (Plaintiff)
D Mallon (First Defendant and Third Cross Defendant)
R Sheldon (Second Defendant)

SOLICITORS: Whitelaw McDonald (Plaintiff)
Griffin Hilditch Lawyers (First Defendant and Third Cross Defendant)
Phillips Fox (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Harrison J

14 February 2008

20137 of 2005 Annette Trudie Browning v Bitupave Limited trading as Boral Asphalt and Cessnock City Council (No 2)
JUDGMENT

Introduction

1 On 31 January 2008 I published my reasons for the principal judgment in this matter: see Browning v Bitupave Limited [2008] NSWSC 19. I entered a verdict for the plaintiff against the first defendant for $2,140,000, and ordered the first defendant to pay the plaintiff's costs. The amount of the verdict was erroneously overstated by $100,000 and by agreement I confirm that the correct sum should have been $2,040,000. With respect to the balance of the orders that I proposed, I invited argument at a time convenient to the parties.

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 Browning v Bitupave Limited (No 2)

Details

AGLC: Browning v Bitupave Limited (No 2) [2008] NSWSC 81
Case: [2008] NSWSC 81
Decision Date: 14 February 2008

CaseChat Overview and Summary

The appeal in Browning v Bitupave Limited (No 2) involved the plaintiff, Browning, and two defendants, Bitupave Limited and another party. Browning sought damages for a defective driveway installation. The case revolved around whether Bitupave Limited was liable for the defective work and whether the plaintiff was entitled to recover costs from the unsuccessful defendant. The court of appeal was tasked with resolving these issues.

The primary legal issue before the court was whether the plaintiff was entitled to recover the costs incurred by Bitupave Limited in defending the plaintiff's claim against both defendants. This hinged on whether the joinder of Bitupave Limited as a defendant was the result of the conduct of the other unsuccessful defendant. Additionally, the court had to determine if a Bullock order was appropriate, which would require the plaintiff to pay the costs of Bitupave Limited but with indemnity from the other defendant.

The court found that the joinder of Bitupave Limited was not due to the conduct of the other unsuccessful defendant. However, it was established that the joinder was not without justification. The court concluded that a Bullock order was appropriate in this case. Consequently, the plaintiff was ordered to pay the costs of Bitupave Limited incurred in defending the claim but was granted indemnity from the other defendant for those costs. The appeal was dismissed with costs.

No further orders were made by the court beyond the directions for costs as outlined above. The decision clarified the circumstances under which a Bullock order may be made and the considerations a court must take into account when determining such an order.

Orders