Cleve Smith Excavations Pty Ltd v Hodgson [No 2]

CITATION:	Cleve Smith Excavations Pty Ltd v Hodgson [No 2] [2010] NSWDC 270
HEARING DATE(S):	5 November 2010
JUDGMENT DATE:	3 December 2010
JURISDICTION:	Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Judgment for the defendant cross claimant in the sum of $73.664.37; 2. See paragraph [34] for consequential orders.
CATCHWORDS:	JUDGMENTS – calculation by parties of amount of final judgment including interest to reflect findings in primary judgment – application by a party to re-open judgment – whether indicated - PROCEDURE – set-off where claim and cross claim succeeded in differing amounts - COSTS – manner in which costs ought to be payable after set-off – whether indemnity costs indicated
LEGISLATION CITED:	Civil Procedure Act 2005, s 98(4)(b)Environmental Planning and Assessment Act 1979, s 76A(1)(b); s 122(b)(ii)Uniform Civil Procedure Rules 2005, r 36.16(1)
CASES CITED:	Cleve Smith Excavations Pty Ltd v Hodgson [2009] NSWDC 232 Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256 Texas Co (Australasia) Ltd v Federal Commissioner of Taxation [1940] HCA 9; (1940) 63 CLR 382
PARTIES:	Cleve Smith Excavations Pty Ltd (Plaintiff) Martin Robert Hodgson (Defendant)
FILE NUMBER(S):	1493 of 2009; 2009/334526
COUNSEL:	Mr J Lazarus (Plaintiff) Mr P Menadue (Defendant)
SOLICITORS:	Conditsis & Associates (Plaintiff) Brennan Tipple Partners (Defendant)

JUDGMENT

Background

1. On 15 October 2010, primary findings and reasons for judgment were delivered in these proceedings. A verdict was entered in favour of the plaintiff, Cleve Smith Excavations Pty Ltd, with damages assessed in the sum of $108,148.76. On the defendant’s cross claim against the plaintiff, a verdict was entered in favour of the defendant/cross claimant, Mr Hodgson, with damages assessed in the sum of $126,743. These amounts excluded pre-judgment interest : Cleve Smith Excavations Pty Ltd v Hodgson [2009] NSWDC 232.

2. The parties were required to calculate the amount of the final judgment to reflect the primary findings, including the amount for interest. These supplementary reasons arise from the parties being given an opportunity to prepare submissions on pre-judgment interest to reflect the primary findings, as well as questions concerning set-off and costs.

3. Following the delivery of the primary reasons, the plaintiff filed a notice of motion seeking to re-open the judgment in order to deal with a matter upon which final submissions had previously been made at the conclusion of the hearing. The plaintiff submitted that there had been no findings made in respect of those submissions. The defendant contested that view, and made reference to a portion of the primary reasons to support that contested view.

4. In the paragraphs that follow, these reasons deal with a minor slip rule amendment to the primary reasons, the identification of the agreed final amount for judgment in the proceedings after calculation of interest and set-off, the plaintiff’s application to re-open the proceedings, the plaintiff’s arguments on the manner in which costs ought to be payable, and an application by the defendant for indemnity costs.

Slip rule amendment

5. The first issue…