Invictus Development Group Pty Ltd v Versatile Fitout Pty Ltd (No.2)

District Court

New South Wales

Medium Neutral Citation:

Invictus Development Group Pty Ltd v Versatile Fitout Pty Ltd (No.2) [2022] NSWDC 521

Hearing dates:

On the papers

Date of orders:

31 October 2022

Decision date:

31 October 2022

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 33

Catchwords:

CIVIL PROCEDURE – building dispute - dispositive orders after publication of reasons – subcontractor succeeds with claim on debt – contractor succeeded in claim for damages for breach of subcontract – whether judgments should be set off

COSTS – whether disentitling conduct by the party which succeeded overall – contractor’s success arising from late amendment – application for partial indemnity costs order

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 21, 90, 98

Uniform Civil Procedure Rules 2005 (NSW) rr 42.1, 42.35

Cases Cited:

Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137

Calderbank v Calderbank (1975) 3 All ER 333

Faraday v Rappaport [2007] NSWSC 253

Invictus Development Group Pty Ltd v Versatile Fitout Pty Ltd [2022] NSWDC 477

Ritter v Godfrey [1920] 2 KB 47

Texts Cited:

G E Dal Pont, Law of Costs (4th ed, LexisNexis, electronic edition)

Category:

Costs

Parties:

Invictus Development Group Pty Ltd (plaintiff/cross-defendant)
Versatile Fitout Pty Ltd (defendant/cross-claimant)

Representation:

Counsel:
Mr P Tiliakos for the plaintiff/cross-defendant
Mr F Corsaro SC for the defendant/cross-claimant

Solicitors:
Macquarie Law Group for the plaintiff/cross-defendant
Memcorp Lawyers for the defendant/cross-claimant

File Number(s):

2020/00283026

Publication restriction:

Nil

REASONS FOR Judgment

1. On 17 October 2022 I published reasons for my judgment on a building dispute between a subcontractor and contractor in relation to certain works at Sydney International Airport[1] . The parties were directed to confer to see if agreement could be reached as to the orders reflecting the Earlier Reasons. The parties remain in dispute. These reasons assume familiarity with the Earlier Reasons. As occurred in the Earlier Reasons, I will refer to the plaintiff/cross-defendant as Invictus and the defendant/cross-claimant as Versatile.

   1. Invictus Development Group Pty Ltd v Versatile Fitout Pty Ltd [2022] NSWDC 477 (the ‘Earlier Reasons’)

Two judgments or one?

2. The parties differed on this question. Invictus preferred to have two judgments reflecting the parties’ respective successes on their respective claims. Versatile argued there should be a single judgment. Invictus had succeeded with its claim in debt on an unpaid invoice. Versatile succeeded on its cross-claim for rectification of a single defect.

3. Invictus submitted that, leaving aside the question of costs, the monetary judgments in favour of both parties are readily susceptible to calculation. For Invictus’ judgment, that should be in the sum of $22,915.05. That sum was derived by adding the amount of the invoice ($17,116), a retention sum held by Versatile ($2,127.83) and pre-judgment interest ($3,671.22). For the judgment for Versatile, the monetary judgment should be $57,548.

4. Invictus also seeks an order that the security paid into Court remain there until further order or the parties consent to its release.

5. Versatile implicitly argues that instead of two different monetary judgments being ordered, there should be…