Hallmark Construction Pty Ltd v Brett Harford; Copeland Building Services Pty Ltd v Hallmark Construction Pty Ltd; Hallmark Construction Pty Ltd v Harford Transport Pty Ltd (No 2)

The proceedings involved appeals and a subsequent motion concerning costs orders made by the Court of Appeal of New South Wales. The primary dispute arose from an underlying construction matter, but the focus of the Court of Appeal's decision was on the variation of costs orders. The parties involved were Hallmark Construction Pty Ltd (appellant), Brett Harford, Harford Transport Pty Ltd, and Copeland Building Services Pty Ltd (respondents), as well as Certain Underwriters at Lloyds and Berkley Insurance Company.

The legal issues before the Court of Appeal were whether it had the power to vary its previous costs orders, particularly in light of an alleged failure to reflect the apportionment of liability between parties, and whether the slip rule was applicable to correct any perceived errors in those orders. Hallmark Construction Pty Ltd sought to vary the costs orders made on 17 March 2020, arguing they did not accurately reflect the liability of the parties.

The Court of Appeal held that once an appeal has been determined and the court's orders have been made, it generally has no power to vary those orders, except in limited circumstances such as the slip rule, which applies to obvious clerical errors or omissions. The court found that the application to vary the costs orders did not fall within the scope of the slip rule, as it sought to re-apportion liability rather than correct a clerical mistake. Furthermore, the court noted that the original costs orders were not challenged on appeal, and any issues regarding apportionment of liability were not raised or determined in the prior appeal.

Consequently, the Court of Appeal dismissed Hallmark Construction Pty Ltd's notice of motion seeking to vary the costs orders. However, the court did vary its order of 17 March 2020 with respect to costs, clarifying the apportionment of costs between the parties in the Court of Appeal. Hallmark Construction Pty Ltd was ordered to pay the costs of Brett Harford and Harford Transport Pty Ltd, while Hallmark Construction Pty Ltd and Copeland Building Services Pty Ltd were ordered to pay the costs of Certain Underwriters at Lloyds and Berkley Insurance Company, with those costs to be apportioned equally between the two appellants. Hallmark Construction Pty Ltd was also ordered to pay the costs of Copeland Building Services Pty Ltd in relation to Hallmark's unsuccessful motion.