KB v Burrun Dalai Corporation Inc (Further Costs)

Supreme Court

New South Wales

Medium Neutral Citation: KB v Burrun Dalai Corporation Inc (Further Costs) [2025] NSWSC 337
Hearing dates: On the papers
Date of orders: 8 April 2025
Decision date: 08 April 2025
Jurisdiction: Equity
Before: Hammerschlag CJ in Eq
Decision:
The plaintiffs are to pay the second and third defendants’ costs.

Catchwords:
COSTS – No issue of principle

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW) r 42.1

Cases Cited:
KB v Burrun Dalai Corporation Inc (Costs) [2025] NSWSC 252

Category: Costs
Parties: KB (First Plaintiff)
LM (Second Plaintiff)
Burrun Dalai Corporation Inc (First Defendant)
Secretary, Department of Communities and Justice (Second Defendant)
Office of the Children’s Guardian (Third Defendant)
Representation:
Counsel:
M Anderson (Second and Third Defendants)
Solicitors:
First Plaintiff (self-represented)
Second Plaintiff (self-represented)
Riverside Legal (First Defendant)
Crown Solicitor’s Office (Second and Third Defendants)
Legal Aid NSW (Children’s Independent Legal Representative)

File Number(s): 2025/00005413
Publication restriction:
Pursuant to an order made on 10 January 2025, there is to be no publication of the name of, or any information that would identify the plaintiffs, the subject children, and any other children who are under the parental responsibility of the Minister for Families and Communities until 14 August 2040.
This order operates throughout the Commonwealth of Australia.

JUDGMENT

On 25 March 2025, I handed down judgment on the first defendant’s costs, which I ordered should be paid by the plaintiffs: KB v Burrun Dalai Corporation Inc (Costs) [2025] NSWSC 252.
The costs of the second defendant (the Secretary) and third defendant (the Children’s Guardian) remain to be dealt with.
I received written submissions from them dated 3 March 2025 and written submissions from the plaintiffs on 4 April 2025.
The only question is whether costs should follow the event in accordance with r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW).
In urging the Court to depart from the usual rule, the plaintiffs make a number of complaints about the conduct of the litigation by the Secretary and the Children’s Guardian.
These complaints include conduct before the litigation commenced and a failure to comply with directions of the Court. These matters do not affect the reality that the outcome was a loss for the plaintiffs in proceedings which were not well conceived.
I do not consider that there is any good reason to depart from the rule that costs follow the event.
One complaint is about the manner in which the proceedings were conducted. It includes an assertion that excessive legal fees were incurred by the defendants.
I wish to make it abundantly clear that the order that the plaintiffs pay the costs of the Secretary and the Children’s Guardian says nothing of the quantum of costs that should be allowed. This is a matter for assessment. The assessment process will no doubt take account of whether any costs have been duplicated or were unnecessarily or unreasonably incurred. Quantum may ultimately be a matter of little concern given the avowed impecuniosity of the plaintiffs, but the point still needed to be made.
The plaintiffs are to pay the second and third defendants’ costs.

**********

The appeal arose from a decision of the Building and Construction Industry Security of Payment Act 2002 (NSW) where the respondent had sought an order for costs. The applicant was a sub-contractor, and the respondent was the principal contractor. The dispute involved an adjudication claim that had been initiated by the applicant under the Security of Payment Act. The court of appeal was required to determine the issue of costs in relation to the proceedings.

The court considered whether the respondent's application for costs was justified. The applicant argued that the respondent had acted unreasonably in pursuing the adjudication claim. The court examined the circumstances in which the adjudication was pursued, including whether there was a genuine dispute over the payment. The court also considered the conduct of both parties throughout the proceedings, including the manner in which the adjudication was pursued and the subsequent litigation.

The court found that the respondent was not entitled to an order for costs. The court held that the respondent had not acted unreasonably in pursuing the adjudication claim. The court found that there was a genuine dispute over the payment, and the respondent was entitled to pursue the adjudication. The court also held that the applicant had not acted unreasonably in defending the adjudication claim and subsequent litigation. The court found that the applicant's conduct was reasonable and that there were no grounds for an order for costs.

No further orders were made by the court.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	KB v Burrun Dalai Corporation Inc (Further Costs) [2025] NSWSC 337
Hearing dates:	On the papers
Date of orders:	8 April 2025
Decision date:	08 April 2025
Jurisdiction:	Equity
Before:	Hammerschlag CJ in Eq
Decision:	The plaintiffs are to pay the second and third defendants’ costs.
Catchwords:	COSTS – No issue of principle
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW) r 42.1
Cases Cited:	KB v Burrun Dalai Corporation Inc (Costs) [2025] NSWSC 252
Category:	Costs
Parties:	KB (First Plaintiff) LM (Second Plaintiff) Burrun Dalai Corporation Inc (First Defendant) Secretary, Department of Communities and Justice (Second Defendant) Office of the Children’s Guardian (Third Defendant)
Representation:	Counsel: M Anderson (Second and Third Defendants) Solicitors: First Plaintiff (self-represented) Second Plaintiff (self-represented) Riverside Legal (First Defendant) Crown Solicitor’s Office (Second and Third Defendants) Legal Aid NSW (Children’s Independent Legal Representative)
File Number(s):	2025/00005413
Publication restriction:	Pursuant to an order made on 10 January 2025, there is to be no publication of the name of, or any information that would identify the plaintiffs, the subject children, and any other children who are under the parental responsibility of the Minister for Families and Communities until 14 August 2040. This order operates throughout the Commonwealth of Australia.