Garzo v Liverpool/Campbelltown Christian School Limited

[2011] NSWSC 498

Supreme Court

New South Wales

Medium Neutral Citation:

Garzo v Liverpool/Campbelltown Christian School Limited & Anor [2011] NSWSC 498

Hearing dates:

3 May 2011

Decision date:

03 June 2011

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1) Vacate order 3 of the orders made on 15 April 2011.

(2) In lieu thereof, order that there be judgment for the second defendant/cross-defendant on the first defendant's/cross-claimant's claim.

(3) Order that the cross-claimant pay the cross-defendant's costs of the cross-claim.

Catchwords:

PRACTICE AND PROCEDURE - UCPR - Slip rule - Error in order.

COSTS - Negligence - Judgment for both defendants on plaintiff's claim - Judgment for second defendant on first defendant's claim - Whether first defendant's prior knowledge of information relevant to second defendant's liability should result in award of indemnity costs against first defendant for entire matter.

Legislation Cited:

Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

Cases Cited:

Garzo v Liverpool/Campbelltown Christian School Limited & Anor [2011] NSWSC 292

Category:

Procedural and other rulings

Parties:

Antoinette Paula Garzo (P)
Liverpool/Campbelltown Christian School Limited (D1)
T&J Turner Building Services Pty Ltd (D2)

Representation:

Counsel:
M. Daley (P)
R. Cheney (D1)
R. Gambi (D2)
Solicitors:
Brydens (P)
Lee & Lyons (D1)
Gadens (D2)

File Number(s):

2009/297310

Judgment

1. On 15 April 2011, I delivered judgment in this matter: Garzo v Liverpool/Campbelltown Christian School Limited & Anor [2011] NSWSC 292.

1. After delivery of judgment, application was made by T&J Turner Building Services Pty Ltd, the second defendant, to vary the orders which were pronounced in that judgment.

1. This judgment deals with that application.

1. It is to be recalled that Mrs Garzo, the plaintiff, claimed that each of the defendants was negligent and that their negligence was the cause of a fall which happened on the evening of 27 November 2007 when she was crossing a pedestrian crossing within the grounds of the William Cary Christian School at Prestons.

1. She claimed that the Liverpool/Campbelltown Christian School Limited, the first defendant, which was the proprietor of the School, was negligent. She also claimed that the second defendant, which was the maintenance contractor, was also negligent.

1. I dismissed her claim against both defendants.

1. In dealing with the application made by Turner, familiarity with the contents of my first judgment of 15 April 2011 will be assumed.

Cross-Claim:  Application of Slip Rule

1. Rule 36.17 of the Uniform Civil Procedure Rules 2005 is in the following terms:

"If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the Court, on the application of any party or of its own motion, may, at any time, correct the mistake or error."

1. Turner submits that order 3 of my first judgment was in error.

1. Order 3 was in this form:

"(3) Judgment for each cross-defendant on each of the cross-claims."

1. Turner has drawn my attention to the fact that there was only one cross-claim filed, namely one filed by the School, against it.

1. In those circumstances it submits the order is clearly an error and should be corrected.

1. The School agrees.

1. Clearly the order should have read:

"Judgment for the second defendant/cross-defendant on the first defendant's/cross-claimant's claim."

1. The orders of the Court will be amended to reflect that error.

Costs of the Cross-Claim

1. In light of the fact that the cross-claim was dismissed and judgment given in favour of Turner, it submits that it should have an order for costs on the cross-claim.

1. The School does not oppose the making of that order.

1. Such an order would be consistent with the usual rule that costs follow the event and it is appropriate that that order be made.

Costs of the Proceedings

1. In addition to the previous application, Turner seeks an order that the School should pay its costs of the entire proceedings on an indemnity basis.

1. This order is opposed by the School.

1. There is no question that the Court has a general power and discretion in relation to the awarding of costs which would be sufficiently wide to permit the making of the order sought. Section 98(1) of the Civil Procedure Act 2005 provides:

"(1) Subject to rules of court and to this or any other Act:

(a) costs are in the discretion of the Court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis."

1. It is clear that this section confers a discretionary power on the Court which is subject only to the existence of particular rules of court and legislation which may limit the discretion.

1. Rule 42.1 of the UCPR provides:

"42.1 Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs."

1. This rule encapsulates the common law principle that ordinarily the exercise of the discretion about costs will lead to an order that the successful party's costs be paid by the unsuccessful party, at least to the extent to which their costs have been reasonably incurred in the conduct of litigation.

Basis for a different order

1. Turner submits that the following circumstances were all within the knowledge of the School, prior to its filing its cross-claim against Turner, which in turn led to Mrs Garzo also joining Turner:

(a) Turner did not perform any patchwork whatsoever after the crossing was fully painted in July 2007;

(b) a third party applied paint to the crossing after Mrs Garzo's fall upon the instructions of or on behalf of the School;

(c) the area where Mrs Garzo claimed to have slipped, was in fact that area painted by the third party some time after the plaintiff's accident; and

(d) the paint, applied after Mrs Garzo's accident, which created the brighter and smoother section of the crossing, was applied before the plaintiff's expert Mr Adams inspected the site.

1. In other words, Turner contends that the principal facts upon which the Court found against Mrs Garzo were all known to the School at all relevant times and in particular prior to the School joining Turner by a cross-claim.

1. Turner clearly places at the feet of the School the entire rationale, mistaken though it was, for it to have been joined to the proceedings.

1. As well, Turner relies upon a letter which its solicitors sent to the solicitors for the School on 29 October 2010, a little under two weeks prior to the final hearing commencing. That letter was in the following terms:

"The above matter is listed for hearing in the Supreme Court commencing on 8 November 2010.

The second defendant disputes that any patch work was carried out after the crossing was fully painted in July 2007 and before the plaintiff's incident. The second defendant intends to call evidence establishing that:

(a) the second defendant did not perform any patch work whatsoever after the crossing was fully painted in July 2007:

(b) a third party applied paint to the crossing after the plaintiff's incident;

(c) the third party was instructed by or on behalf of the first defendant;

(d) the third party painted the so called brighter and smoother section of crossing where the plaintiff claims to have slipped some time after the plaintiff's incident; and

(e) the third party applied the paint to the crossing after the incident but before Mr Adams inspected the site.

Consequently, the second defendant disputes that the plaintiff slipped on a brighter and smoother section of paint on the crossing as alleged or at all. In those circumstances, the evidence will lead to a decision in our client's favour in the substantive proceedings and on the cross claim.

Given that the above information was within the first defendant's knowledge prior to the second defendant being joined to the proceedings, if the second defendant is successful at hearing it will seek to rely upon this letter in support of an application for the first defendant to pay the second defendant's costs (in the substantive proceedings and cross claim) on an indemnity basis from the date it was joined to the proceedings by way of cross claim.

Yours sincerely"

1. The material upon which Turner relies and its submissions suggest that it was wholly unreasonable of the School to have brought a cross-claim against it, but the submissions do not seem to suggest that the joinder of Turner by Mrs Garzo was itself unreasonable.

1. The submissions of Turner call in aid the provisions of s 56 of the Civil Procedure Act and are encapsulated in this paragraph which summarises the basis upon which Turner seeks the costs order:

"26. It is submitted the first defendant failed to comply with its obligations under s.56. In particular, the first defendant:

(i) Knowingly joined the second defendant as a cross defendant and allowed the plaintiff to continue with a claim against the second defendant in circumstances where it was in possession of the correct facts concerning the newly painted section of the pedestrian crossing.

(ii) Caused the proceedings to be unduly lengthened and costs to be unnecessarily incurred in circumstances where it was in possession of the correct facts concerning the newly painted section of the pedestrian crossing.

(iii) Failed to respond to reasonable requests by the second defendant for clarification of when the newly painted section of the pedestrian crossing came into existence.

(iv) Failed in its duty to assist the court to further the overriding purpose in s.56(1).

(v) Failed in its duty to take reasonable steps to resolve or narrow the issues in dispute."

1. The School resists the order for costs which is sought.

1. The School resisted the order upon the basis that the statement of claim relied upon by Mrs Garzo and the allegations at trial relied upon by her were not limited only to the area of the pedestrian crossing which had been painted after the plaintiff's accident and before being inspected by Mr Adams. In particular, Turner submitted that the principal allegations actually litigated at the trial were those in paragraphs 8(c), (d) and (e) of the plaintiff's amended statement of claim. I have set out those allegations in paragraph 40 of my first judgment.

1. The School pointed to the fact that Mrs Garzo had conducted the case upon an allegation that the Easy Line paint, which had in fact been used by Turner, was not an appropriate paint for use on a pedestrian crossing and that there were more appropriate paints available on the market. Given that Turner had the expertise to determine the appropriateness of the paint, it was argued that joinder of Turner was reasonable.

1. As well, the School points to the fact that even once the plaintiff learnt that the particular part of the crossing upon which she claimed to have slipped had been apparently painted by Mr Stevenson of Kinetic Engineering after her accident, that she nevertheless continued with her claim against both defendants. The School submits that this conduct is inconsistent with the fundamental premise of the Turner's argument about the events which would have occurred had earlier discovery been given of the Kinetic Engineering report.

1. Finally, the School submitted that given the manner in which the plaintiff conducted the trial it was entirely appropriate that it joined Turner, particularly having regard to the findings of the Court at [347], where I held that Turner bore the greater share for responsibility for the plaintiff's fall if the plaintiff had succeeded on her cause of action.

Discernment

1. The order which Turner seeks is an unusual one.

1. It seeks an order that a successful party, the first defendant, should pay, and on an indemnity basis, the costs of another successful party in circumstances where the Court has ordered that the unsuccessful party, the plaintiff, pay the costs of both defendants.

1. It seems to me that the fundamental premise underlying Turner's submissions is that had the School behaved differently in the way which Turner submits it should have, Mrs Garzo would also have behaved differently with the result that Turner would not have been either a party or else would not have continued to have been a party.

1. The difficulty with this submission is that the events which have occurred demonstrate that the premise is incorrect because once Mrs Garzo learnt of all of the facts which Turner says it ought to have been told, she continued in the same way in which it had previously.

1. As well, the submission does not take account of the fact that the plaintiff's claim was broader than the mere factual issue about whether additional paint had been painted on a particular corner of the crossing. My first judgment makes it plain that there was more than just that issue joined between the parties.

1. In those circumstances I am not persuaded that there is anything exceptional about the conduct of the School which is sufficient to make it responsible to pay Turner's costs on any basis including the basis claimed.

1. In short, I am not persuaded that it is in the interests of justice that one successful party (the School) should pay another successful party's (Turner) costs in circumstances where the Court has made an order that the unsuccessful party (Mrs Garzo) should pay those costs.

1. I dismiss the application.

1. The orders for costs which I made on 15 April 2011 will remain.

1. Accordingly, as a consequence of the entirety of this application, I will make the following orders:

Orders

(1) Vacate order 3 of the orders made on 15 April 2011.

(2) In lieu thereof, order that there be judgment for the second defendant/cross-defendant on the first defendant's/cross-claimant's claim.

(3) Order that the cross-claimant pay the cross-defendant's costs of the cross-claim.

(4) Dismiss the application by the second defendant for its costs to be paid on an indemnity basis by the first defendant.

(5) Order each party to pay its own costs of that application.

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Decision last updated: 03 June 2011