Hossain v Unity Grammar College Ltd

[2019] NSWSC 1584

Supreme Court

New South Wales

Medium Neutral Citation:

Hossain v Unity Grammar College Ltd and Ors [2019] NSWSC 1584

Hearing dates:

In chambers on the papers

Date of orders:

15 November 2019

Decision date:

15 November 2019

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

See paragraph [6]

Catchwords:

CIVIL PROCEDURE – Costs – cross-claim – general rule that costs follow the event – claim for contribution – no question of principle

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Law Reform Miscellaneous Provisions Act 1946 (NSW)

Category:

Costs

Parties:

Delwar Hossain (Plaintiff)
Unity Grammar College Ltd (First Defendant)
Binah Projecs Pty Ltd (Second Defendant)
Five Star (Sixth Defendant)
Elgas Limited (Seventh Defendant)
Cohen and Associates Pty Ltd (Third Cross Defendant on first cross-claim)

Representation:

Counsel:
D A Lloyd (First Defendant)
R N O’Neill (Third Cross Defendant on first cross-claim)

 

Solicitors:

  HWL Ebsworths (First Defendant)
McDonnell Schroder (Third Cross-Defendant to the First Cross-Claim)

File Number(s):

2013/401848

Judgment

1. On 1 October 2019 I delivered my reserved decision in this matter. So far as is relevant for present purposes, I found each of the active defendants and the third defendant to the first cross-claim (“Cohen”) equally liable to contribute to the damages payable to Mr Hossain for the person injuries suffered by him on 12 February 2011. Cohen remained a party in the proceedings only as the third defendant to the third cross-claim. The plaintiff had discontinued proceedings against it, and no party other than the first defendant (“the College”) maintained a cross-claim against it.

2. Pursuant to directions made at the time judgment was handed down, the parties brought in short minutes of final orders on 25 October 2019. Those orders in accordance with my judgment made provision for each of the active defendants and Cohen to bear their own costs of each of the cross-claims.

3. The college sought leave, which I granted, to argue that Cohen should pay the College’s costs of the cross-claim against it.

4. Mr D.A. Lloyd of counsel, for the College, invokes UCPR 42.1 encapsulating the general rule that costs follow the event. He points out that discreet evidence was tendered and argument advanced relating to Cohen’s liability to the plaintiff, in its capacity as the private certifier for the project involving the first stage construction of the college, which included the defective gas installation. Mr R.N. O’Neill of counsel, who appeared for Cohen, submits that in the overall scheme of things, the separate evidence and argument involving his client was minimal. He submits that the order I made apportioning 20 percent liability for the plaintiff’s costs on Cohen more than adequately covers its liability for costs. He submits that to that extent the liability for costs of the College and the other active defendants is reduced.

5. Although I accept that the College’s costs of bringing and maintaining the cross-claim against Cohen ought not be large, I am persuaded by Mr Lloyd that his client should have the benefit of an order in that regard. Each of the other defendants I adjudged legally liable and which will be obliged to contribute to the plaintiff’s damages were sued directly by the plaintiff and exchanged cross-claims claiming contribution from each other. An order that they each bear their own costs of the cross-claim in circumstances where each was adjudged equally liable for the purpose of s 5 of the Law Reform Miscellaneous Provisions Act 1946 (NSW) seems to achieve broad justice. However, in Cohen’s case, had the claim for contribution not been brought and maintained by the first defendant, separate proceedings for contribution would have been necessary, after the completion of these proceedings, which likely would have involved greater costs. In the end I am satisfied that the general rule should apply and the College should have the costs sought by Mr Lloyd including the costs of this application.

6. I vary the final orders pronounced on 25 October 2019 as follows:

1. (a)   Vary order 22 by adding the words, “Subject to Order 22A” at its commencement; and

2. (b)   By adding order 22A, “The third defendant to the first cross-claim (Cohen) is to pay the first defendant’s costs of that cross-claim on the ordinary basis so far as they solely relate to the claim for contribution against the cross-defendant and not otherwise.”

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Decision last updated: 15 November 2019