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Drummond and Rosen Pty Ltd v Easey (No 2)

Drummond and Rosen Pty Ltd v Easey (No 2)

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Case Copied 20 October 2009 26 min read

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New South Wales

Court of Appeal

CITATION: DRUMMOND AND ROSEN PTY LIMITED v EASEY & ORS [NO 2] [2009] NSWCA 331

HEARING DATE(S): On the papers.

JUDGMENT DATE:
20 October 2009

JUDGMENT OF: Tobias JA at 1; Macfarlan JA at 2; Handley AJA at 9

DECISION: (1) The orders for costs included in orders (2), (3), (4), (5) and (8) made by this Court on 16 April 2009 are varied as herein provided.
(2) Order (2) is varied by adding “to be paid by the first and second defendants jointly, jointly and severally with the third defendant and the plaintiff, the order against the plaintiff only to be enforceable to the extent, if any, that the fourth defendant is unable to recover its costs of the action from the other defendants.”
(3) Order (3) against the owners is varied by adding “such costs to be on an indemnity basis from 20 June 2006.”
(4) Order (4) against the builders is varied by adding “such costs to be on an indemnity basis from 20 June 2006.”
(5) Order (8) is varied by adding “the orders against the first, second and third respondents only to be enforceable to the extent, if any, that the appellant is unable to recover its costs of the appeal from the fourth respondent.”
(6) The appellant to pay the plaintiff’s and the builders’ costs of the Notice of Motion of 30 April 2009.
(7) The owners to pay one half of the appellant’s costs of the Notice of Motion of 30 April 2009 in so far as that Notice of Motion related to claims against the owners.
(8) The plaintiff’s Notice of Motion of 16 June 2009 dismissed as incompetent, with no order as to costs.
(9) In this order:
X – equals the total amount of costs and disbursements which the architects have paid or are liable to pay to their legal advisers in connection with these proceedings.
Y – equals the total amount of costs and disbursements allowed on assessment to the architects in connection with these proceedings.
The Allowed Percentage equals ((y/x) x 100)%
Order the owners and the builders to pay to the architects interest on costs and disbursements, at the rates set out in Schedule 5 Uniform Civil Procedure Rules, on the Allowed Percentage of each amount of costs and disbursements actually paid by the architects, from the date of payment by the architects of each such amount of costs and disbursements until the first to occur of:
(a) such time as the owners or builders have paid the costs due to the architects under any order made in these proceedings, or
(b) the assessment of the costs to which the architects are entitled pursuant to the costs orders in their favour.
(10) Grant liberty to the architects to apply upon 3 days notice to the other parties for an order for payment of a specific amount in respect of the interest awarded upon costs pursuant to Order (9).

CATCHWORDS: COSTS -…

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.

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Details

Case: [2009] NSWCA 331
Decision Date: 20 October 2009

CaseChat Overview and Summary

In *Drummond and Rosen Pty Ltd v Easey (No 2)*, the New South Wales Court of Appeal considered an application to vary previous costs orders made in proceedings involving Drummond and Rosen Pty Ltd (the appellant), Easey (the plaintiff), and other defendants including owners and builders. The dispute concerned the recovery of costs and disbursements in the underlying litigation.

The primary legal issue before the Court of Appeal was the appropriate basis and allocation of costs, particularly in relation to indemnity costs and the enforceability of certain costs orders against specific parties. The Court was required to determine whether to vary existing orders concerning the payment of costs, including the application of indemnity costs from a specific date and the extent to which certain parties were liable for the costs of others.

The Court varied the original costs orders to reflect a more detailed allocation of liability and to introduce indemnity costs for certain parties from a specified date. Specifically, the Court ordered that costs awarded to the architects be on an indemnity basis from 20 June 2006 against the owners and builders. Further variations addressed the enforceability of costs orders, ensuring that the appellant could recover its costs from other defendants before recourse against the plaintiff. The Court also made specific orders regarding the costs of a Notice of Motion and dismissed another Notice of Motion as incompetent. Finally, the Court made detailed orders for the payment of interest on costs and disbursements by the owners and builders to the architects, calculated on an "Allowed Percentage" of the architects' actual costs paid.

Orders

Orders of the court

(1) The orders for costs included in orders (2), (3), (4), (5) and (8) made by this Court on 16 April 2009 are varied as herein provided.

(2) Order (2) is varied by adding “to be paid by the first and second defendants jointly, jointly and severally with the third defendant and the plaintiff, the order against the plaintiff only to be enforceable to the extent, if any, that the fourth defendant is unable to recover its costs of the action from the other defendants.”

(3) Order (3) against the owners is varied by adding “such costs to be on an indemnity basis from 20 June 2006.”

(4) Order (4) against the builders is varied by adding “such costs to be on an indemnity basis from 20 June 2006.”

(5) Order (8) is varied by adding “the orders against the first, second and third respondents only to be enforceable to the extent, if any, that the appellant is unable to recover its costs of the appeal from the fourth respondent.”

(6) The appellant to pay the plaintiff’s and the builders’ costs of the Notice of Motion of 30 April 2009.

(7) The owners to pay one half of the appellant’s costs of the Notice of Motion of 30 April 2009 in so far as that Notice of Motion related to claims against the owners.

(8) The plaintiff’s Notice of Motion of 16 June 2009 dismissed as incompetent, with no order as to costs.

(9) In this order:

X – equals the total amount of costs and disbursements which the architects have paid or are liable to pay to their legal advisers in connection with these proceedings.

Y – equals the total amount of costs and disbursements allowed on assessment to the architects in connection with these proceedings.

The Allowed Percentage equals ((y/x) x 100)%

Order the owners and the builders to pay to the architects interest on costs and disbursements, at the rates set out in Schedule 5 Uniform Civil Procedure Rules, on the Allowed Percentage of each amount of costs and disbursements actually paid by the architects, from the date of payment by the architects of each such amount of costs and disbursements until the first to occur of:

(a) such time as the owners or builders have paid the costs due to the architects under any order made in these proceedings, or

(b) the assessment of the costs to which the architects are entitled pursuant to the costs orders in their favour.

(10) Grant liberty to the architects to apply upon 3 days notice to the other parties for an order for payment of a specific amount in respect of the interest awarded upon costs pursuant to Order (9).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	DRUMMOND AND ROSEN PTY LIMITED v EASEY & ORS [NO 2] [2009] NSWCA 331
HEARING DATE(S):	On the papers.
JUDGMENT DATE:	20 October 2009
JUDGMENT OF:	Tobias JA at 1; Macfarlan JA at 2; Handley AJA at 9
DECISION:	(1) The orders for costs included in orders (2), (3), (4), (5) and (8) made by this Court on 16 April 2009 are varied as herein provided. (2) Order (2) is varied by adding “to be paid by the first and second defendants jointly, jointly and severally with the third defendant and the plaintiff, the order against the plaintiff only to be enforceable to the extent, if any, that the fourth defendant is unable to recover its costs of the action from the other defendants.” (3) Order (3) against the owners is varied by adding “such costs to be on an indemnity basis from 20 June 2006.” (4) Order (4) against the builders is varied by adding “such costs to be on an indemnity basis from 20 June 2006.” (5) Order (8) is varied by adding “the orders against the first, second and third respondents only to be enforceable to the extent, if any, that the appellant is unable to recover its costs of the appeal from the fourth respondent.” (6) The appellant to pay the plaintiff’s and the builders’ costs of the Notice of Motion of 30 April 2009. (7) The owners to pay one half of the appellant’s costs of the Notice of Motion of 30 April 2009 in so far as that Notice of Motion related to claims against the owners. (8) The plaintiff’s Notice of Motion of 16 June 2009 dismissed as incompetent, with no order as to costs. (9) In this order: X – equals the total amount of costs and disbursements which the architects have paid or are liable to pay to their legal advisers in connection with these proceedings. Y – equals the total amount of costs and disbursements allowed on assessment to the architects in connection with these proceedings. The Allowed Percentage equals ((y/x) x 100)% Order the owners and the builders to pay to the architects interest on costs and disbursements, at the rates set out in Schedule 5 Uniform Civil Procedure Rules, on the Allowed Percentage of each amount of costs and disbursements actually paid by the architects, from the date of payment by the architects of each such amount of costs and disbursements until the first to occur of: (a) such time as the owners or builders have paid the costs due to the architects under any order made in these proceedings, or (b) the assessment of the costs to which the architects are entitled pursuant to the costs orders in their favour. (10) Grant liberty to the architects to apply upon 3 days notice to the other parties for an order for payment of a specific amount in respect of the interest awarded upon costs pursuant to Order (9).
CATCHWORDS:	COSTS -…