Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd

Civil Mining & Construction Pty Ltd (CMC) and Wiggins Island Coal Export Terminal Pty Ltd (WICET) were involved in a complex construction dispute, with both parties filing claims and counterclaims. The primary focus of the litigation was whether WICET was entitled to damages for delays caused by CMC and whether CMC was entitled to damages for delays caused by WICET. The case was heard in the Supreme Court of New South Wales.

The central legal issues revolved around the interpretation of formal offers to settle made by both parties. Both offers were for an all-up sum that did not distinguish between the claim and counterclaim. The court had to determine if these offers could be compared with the net result of the judgments on the claim and counterclaim to decide which party was entitled to costs. Additionally, the court had to consider whether the general rule that costs follow the event should be departed from, given that both parties were successful in their respective claims but to varying extents.

The court ruled that neither of the offers could be compared with the net result of the judgments, as the offers were not specific to the claim and counterclaim. Regarding the costs, the court determined that the event in question was CMC’s securing of a net positive outcome. Despite WICET’s breaches of the undertaking in rule 5, the court found that CMC’s overall success entitled it to costs from WICET for the claim, while WICET was awarded costs for its successful counterclaim against CMC. The court also dismissed WICET’s applications for costs and set a future date to hear the parties’ submissions on the costs of these applications.

CMC was ordered to pay WICET’s costs of the counterclaim, while WICET was directed to pay CMC’s costs of the claim. The applications filed by WICET on 23 July 2019 and the amended application dated 20 August 2019 were dismissed. The court scheduled a further hearing to address the costs associated with these applications.