CJD Equipment v A&C Constructions - [2010] NSWSC 502

CITATION: CJD Equipment v A&C Constructions [2010] NSWSC 502

HEARING DATE(S): 14 May 2010

JURISDICTION: Equity Division
Technology & Construction List

JUDGMENT OF: McDougall J at 1

EX TEMPORE JUDGMENT DATE: 14 May 2010

DECISION: Parties to bring in short minutes of order.

CATCHWORDS: PROCEDURE - costs - exercise of discretion as to costs - where judgment for small percentage only of amount claimed - proportionality of recoupment of costs to amount of judgment - prima facie entitlement to costs overridden by Calderbank offer - whether Calderbank offer involved compromise.

LEGISLATION CITED: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules

CATEGORY: Consequential orders

CASES CITED: Brand v Monks [2010] NSWSC 313
Calderbank v Calderbank [1975] 3 All E R 333
Prestige Residential Marketing Pty Ltd v Depune Pty Ltd (No. 2) [2008] NSWCA 341

PARTIES: CJD Equipment Pty Limited (Plaintiff)
A&C Constructions Pty Limited (First Defendant)
Allan Keith Jeffree (Second Defendant)
GF Murphy Consulting Pty Limited (Third Defendant)
Telford Building Systems (Aust) Pty Limited (Fourth Defendant)
Peter Marcus Consulting Engineers Pty Limited (Fifth Defendant)

FILE NUMBER(S): SC 2008/290633

COUNSEL: D C Price (Plaintiff)
E M Olsson SC (First and Second Defendants)
R J Cheney (Third Defendant)
I G B Roberts (Fourth Defendant)
D J Fagan SC (Fifth Defendant)

SOLICITORS: The Builder's Lawyers (Plaintiff)
Walsh & Blair Lawyers (First and Second Defendants)
Kennedys Lawyers (Third Defendant)
DLA Phillips Fox (Fourth Defendant)
Colin Biggers & Paisley (Fifth Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY & CONSTRUCTION LIST

McDOUGALL J

14 May 2010 (ex tempore – revised 14 May 2010)

2008/290633 CJD EQUIPMENT PTY LTD v A & C CONSTRUCTIONS PTY LIMITED

JUDGMENT – (Re costs)

1 HIS HONOUR: In my reasons given on 20 December 2009 ([2009] NSWSC 1362) I concluded that CJD's claim for damages succeeded in part against A & C but failed against all other defendants. In my reasons given earlier today, I quantified the amount payable by A & C to CJD at $164,395. That may be compared with a total claim of the order of $6 million.

2 The parties have made applications for costs. It is necessary to deal with them individually.

3 CJD submits that it has succeeded against A & C. Accordingly, it submits, it has a prima facie entitlement to costs (UCPR r 42.1).

4 A & C submits that the amount recovered was, if not nominal, minimal compared to the amount claimed: of the order of 2.5 or 3 per cent. In those circumstances, it makes a number of alternative claims. It says (subject to a claim for indemnity costs) that CJD should pay its costs of the proceedings; alternatively, that each party should pay their own costs of the proceedings up until the date the Calderbank offer was made; alternatively, that it should pay no more than 20 per cent of CJD's costs up to that date.

5 From the date of the Calderbank offer (20 August 2009) A & C submits that…

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 CJD Equipment v A&C Constructions

Details

AGLC: CJD Equipment v A&C Constructions [2010] NSWSC 502
Case: [2010] NSWSC 502
Decision Date: 14 May 2010

CaseChat Overview and Summary

In the matter of CJD Equipment v A&C Constructions, the court addressed a dispute concerning costs incurred in a legal action. The primary focus of the case was on whether the plaintiff was entitled to recover costs following a partial judgment in their favour. The case was heard and determined in the Supreme Court of Victoria. The plaintiff sought a significant amount of money from the defendant in relation to a breach of contract claim, but was only awarded a small percentage of the amount claimed.

The legal issues central to the case revolved around the proportionality of the costs incurred in relation to the amount recovered and whether the plaintiff's entitlement to those costs was affected by a prior Calderbank offer. Specifically, the court had to determine whether the offer constituted a compromise and, if so, whether it should impact the plaintiff's right to recoup costs. The court was also tasked with assessing the proportionality of the costs sought by the plaintiff relative to the amount of the judgment.

The court found that the plaintiff was initially entitled to costs based on the proportion of the judgment to the amount claimed. However, the court's discretion was influenced by the Calderbank offer. The offer was deemed to involve a compromise, which meant the plaintiff's entitlement to costs was subject to reconsideration. The court concluded that the costs claimed were disproportionate to the amount of the judgment and made an order for costs that reflected this assessment.

Orders