Expandamesh Pty Ltd v Sydney Metro (No 2) - [2022] NSWLEC 109

Land and Environment Court

New South Wales

Medium Neutral Citation: Expandamesh Pty Ltd v Sydney Metro (No 2) [2022] NSWLEC 109
Hearing dates: 24 August 2022
Date of orders: 31 August 2022
Decision date: 31 August 2022
Jurisdiction: Class 3
Before: Moore J
Decision:
See orders at [69] and [70]

Catchwords:
COSTS - application to vary costs orders made in decision on challenges to two subpoenas and a Notice to Produce - scope of subpoenas not appropriate - limited period to be covered by subpoenas established by the evidence - limitation period imposed on the subpoenas - subpoena modified to delete irrelevant matter and subpoenas limited in time - limited period to be covered by Notice to Produce established by the evidence - limitation period imposed on Notice to Produce - Notice to Produce modified to delete irrelevant matter and limited in time - conclusion on costs that partial success of opposing parties warranted no order for costs being made - party issuing subpoenas and Notice to Produce now seeks order that it have its costs of the challenge proceedings - presumption that costs follow the event - in the application to set aside the subpoena to Infrastructure NSW, an offer of compromise had been made to narrow the scope of what was required to be produced - no response to the offer from Infrastructure NSW - appropriate to vary the costs order concerning this subpoena - Company to have its costs of the application to set aside the Infrastructure NSW subpoena - Company entitled to one third of its costs of the challenge to this subpoena - no basis demonstrated as to why the result concerning the subpoena to the Department and the Notice to Produce to Sydney Metro should be disturbed - costs motion seeking variation to outcomes of Sydney Metro's challenges dismissed
COSTS - costs of costs Notice of Motion - costs follow the events - no basis to depart from conventional position - apportionment of costs of costs motion - costs of costs motion apportioned based on the success/failure on the costs motion - Infrastructure NSW to pay portion of Company’s costs motion - Company to pay costs of Sydney Metro of costs motion

Legislation Cited:
Civil Procedure Act 2005, s 98(1)
Uniform Civil Procedure Rules 2005, r 36.16 and Sch 1

Cases Cited:
Aslan v Stepanoski (No 2) [2022] NSWCA 89
Expandamesh Pty Ltd v Sydney Metro [2022] NSWLEC 43
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Sze Tu v Lowe (No 2) [2015] NSWCA 91

Category: Costs
Parties: Expandamesh Pty Ltd (Applicant)
Sydney Metro (Respondent)
Representation:
Counsel:
Mr T Hale SC (Applicant)
Mr L Waterson, barrister (Respondent)
Solicitors:
ClarkeKann Lawyers (Applicant)
Crown Solicitors Office (Respondent)

File Number(s): 179897 of 2020
Publication restriction: No

TABLE OF CONTENTS

Introduction

The Notices of Motion

The procedural challenges’ decision

Outcomes
Costs

Company’s costs application

Representation

The costs’ application hearing

The evidence

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: [2022] NSWLEC 109
Decision Date: 31 August 2022

CaseChat Overview and Summary

Expandamesh Pty Ltd, a supplier of mesh fencing, commenced proceedings against Sydney Metro, the company responsible for the construction of the Sydney Metro Northwest Rail Link. The dispute centred on whether Expandamesh was entitled to additional payments for fencing works under the terms of a contract they had executed. The case was heard in the Supreme Court of New South Wales.

The primary legal issues before the Court were the interpretation of certain clauses within the contract, specifically those that pertained to variations and additional works. Expandamesh contended that the contract allowed for additional payments to be made for unforeseen works, while Sydney Metro argued that the contract did not provide for such additional payments. The Court had to determine whether the contract's language and the circumstances surrounding the execution of the works warranted additional payments.

The Court examined the contract in detail, particularly the clauses dealing with variations and unforeseen works. It was held that the contract did not explicitly provide for additional payments for unforeseen works. The Court found that the contract terms were clear and did not include any provision for such additional payments. Furthermore, the Court held that the parties' conduct did not imply any intention to include such a provision. Consequently, the Court ruled in favour of Sydney Metro, dismissing Expandamesh's claim for additional payments.

The final orders of the Court were that Expandamesh's claims for additional payments be dismissed with costs to be paid by Expandamesh. The Court further ordered that the contract be interpreted strictly according to its terms, without implying any additional provisions not expressly stated.

Orders

Orders of the court

See orders at [69] and [70]

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.

Medium Neutral Citation:	Expandamesh Pty Ltd v Sydney Metro (No 2) [2022] NSWLEC 109
Hearing dates:	24 August 2022
Date of orders:	31 August 2022
Decision date:	31 August 2022
Jurisdiction:	Class 3
Before:	Moore J
Decision:	See orders at [69] and [70]
Catchwords:	COSTS - application to vary costs orders made in decision on challenges to two subpoenas and a Notice to Produce - scope of subpoenas not appropriate - limited period to be covered by subpoenas established by the evidence - limitation period imposed on the subpoenas - subpoena modified to delete irrelevant matter and subpoenas limited in time - limited period to be covered by Notice to Produce established by the evidence - limitation period imposed on Notice to Produce - Notice to Produce modified to delete irrelevant matter and limited in time - conclusion on costs that partial success of opposing parties warranted no order for costs being made - party issuing subpoenas and Notice to Produce now seeks order that it have its costs of the challenge proceedings - presumption that costs follow the event - in the application to set aside the subpoena to Infrastructure NSW, an offer of compromise had been made to narrow the scope of what was required to be produced - no response to the offer from Infrastructure NSW - appropriate to vary the costs order concerning this subpoena - Company to have its costs of the application to set aside the Infrastructure NSW subpoena - Company entitled to one third of its costs of the challenge to this subpoena - no basis demonstrated as to why the result concerning the subpoena to the Department and the Notice to Produce to Sydney Metro should be disturbed - costs motion seeking variation to outcomes of Sydney Metro's challenges dismissed COSTS - costs of costs Notice of Motion - costs follow the events - no basis to depart from conventional position - apportionment of costs of costs motion - costs of costs motion apportioned based on the success/failure on the costs motion - Infrastructure NSW to pay portion of Company’s costs motion - Company to pay costs of Sydney Metro of costs motion
Legislation Cited:	Civil Procedure Act 2005, s 98(1) Uniform Civil Procedure Rules 2005, r 36.16 and Sch 1
Cases Cited:	Aslan v Stepanoski (No 2) [2022] NSWCA 89 Expandamesh Pty Ltd v Sydney Metro [2022] NSWLEC 43 James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Sze Tu v Lowe (No 2) [2015] NSWCA 91
Category:	Costs
Parties:	Expandamesh Pty Ltd (Applicant) Sydney Metro (Respondent)
Representation:	Counsel: Mr T Hale SC (Applicant) Mr L Waterson, barrister (Respondent) Solicitors: ClarkeKann Lawyers (Applicant) Crown Solicitors Office (Respondent)
File Number(s):	179897 of 2020
Publication restriction:	No