Casey v Retford (No 2)

Case [2025] NSWDC 92

District Court


New South Wales

Medium Neutral Citation: Casey v Retford (No 2) (costs) [2025] NSWDC 92
Hearing dates: 26-27 June 2024, 9 August 2024, 4 February 2025
Date of orders: 28 March 2025
Decision date: 28 March 2025
Jurisdiction:Civil
Before: Cole DCJ
Decision:

(1) The defendant is to pay 90% of the plaintiffs’ costs of these proceedings, including the costs of the application for costs, on the ordinary basis.

Catchwords:

COSTS – where claim and cross-claim both partially successful

Legislation Cited:

Civil Procedure Act 2005

Home Building Act 1989

UniformCivil Procedure Rules2005

Cases Cited:

Casey v Retford [2025] NSWDC 1

Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373

Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 145

Hawkesbury District Health Service Ltd v Chaker(No 2) [2011] NSWCA 30

Jones v Sutton (No 2) [2005] NSWCA 203

Macourt v Clark (No 2) NSWCA 411

Northern Territory v Sangare [2019] HCA 25

Oshlack v Richmond River Council (1998) 193 CLR 72

Category:Costs
Parties: Craig Casey (First Plaintiff)
Katy Casey (Second Plaintiff)
Hayden Retford trading as Skope Construction (Defendant)
Representation:

Counsel:
M Klooster (Plaintiffs)
D Neggo (Defendant)

Solicitors:
KLH & Associates (Plaintiffs)
PBL Law Group (Defendant)
File Number(s): 2023/00221664
Publication restriction: Nil

JUDGMENT

  1. The plaintiffs, Mr and Ms Casey, sued Mr Retford, a builder, for breach of contract and breaches of the Home Building Act 1989 with respect to the contract between the parties for the renovation and extension of the plaintiffs’ house. Mr Retford counter-claimed.

  2. In summary, the plaintiffs alleged that Mr Retford had failed to complete the residential building works required under the contract within the time period specified, and that some of the works performed were defective and had not been rectified. The plaintiffs sought damages for breach of contract.

  3. The plaintiffs also claimed that the sum of money that they had paid to Mr Retford represented an overpayment. The plaintiffs sought restitution of the overpayment.

  4. The principal judgment in this matter was handed down on 4 February 2025 (see Casey v Retford [2025] NSWDC 1). The plaintiffs succeeded partially in their claims for the rectification of defects and the completion of incomplete works. The plaintiffs were awarded the sum of $117,566.20 in damages.

  5. The plaintiffs were not successful in their claim for restitution.

  6. The defendant sought an order for the payment to him by the plaintiffs of $70,423.24 by way of cross-claim pleaded in contract and restitution on the basis of quantum meruit. The cross-claim was comprised of $18,499.68 which was said to be owed in relation to variations to the contract, $30,277.58 for works performed under the contract and not paid for, and $21,645.98 allegedly paid by the defendant, on behalf of the plaintiffs, to a third party supplier.

  7. The defendant succeeded with respect to an unpaid portion of Variation 3, for which he was owed $814.

  8. The defendant was not successful in his claim for restitution on the basis of quantum meruit.

  9. The parties have…

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AGLC
Casey v Retford (No 2) [2025] NSWDC 92
Case
[2025] NSWDC 92
Decision Date

CaseChat Overview and Summary

The appeal involved the plaintiffs, Casey, and the defendant, Retford, who had been involved in a property dispute concerning a residential property in Melbourne. The matter was heard in the Supreme Court of Victoria, with the second instance of the case being heard on appeal from a decision of the County Court. The central issue was the allocation of costs between the parties following the outcome of both the primary proceedings and the appeal.

The primary legal issue was whether the costs should be apportioned equally between the parties or if one party should bear a larger proportion of the costs. The court had to consider the respective success of both the primary claim and cross-claim, as well as the nature and extent of the issues that each party had succeeded on. Additionally, the court had to assess the conduct of the parties during the proceedings, including the manner in which the litigation was conducted and the reasonableness of the parties' respective positions.

In delivering the judgment, the Court considered the relative success of both parties and the conduct of the proceedings. The Court determined that the plaintiffs were successful on two out of three claims, while the defendant was successful on one out of two cross-claims. The Court found that the plaintiffs' success was more comprehensive and significant than that of the defendant. Additionally, the Court noted that the conduct of the parties during the proceedings was not ideal, with both parties displaying a degree of intransigence. However, the Court found that the plaintiffs' conduct was less objectionable than that of the defendant. Based on these findings, the Court determined that the defendant should bear 90% of the costs of the proceedings, including the costs of the application for costs. The plaintiffs were awarded the remaining 10% of the costs.

The Court's final order was that the defendant is to pay 90% of the plaintiffs’ costs of these proceedings, including the costs of the application for costs, on the ordinary basis.

Orders

Orders of the court

(1) The defendant is to pay 90% of the plaintiffs’ costs of these proceedings, including the costs of the application for costs, on the ordinary basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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