Ku-ring-gai Council v Chan (No 2)

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ku-ring-gai Council v Chan (No 2) [2018] NSWCA 73

Hearing dates:

On the papers

Date of orders:

11 April 2018

Decision date:

11 April 2018

Before:

McColl JA at [1];
Meagher JA at [1];
Sackville AJA at [1]

Decision:

1. Set aside order 2 made on 30 September 2017 and in lieu thereof order that the plaintiffs pay the fourth defendant’s costs of their claim against it on the ordinary basis.

 2. Order that the appellant Council pay the costs of the first and second respondents of this application.

Catchwords:

COSTS – where appeal by Council (fourth defendant) allowed from judgment in favour of plaintiffs – where plaintiffs rejected informal Calderbank letter from Council – whether costs incurred after offer rejected be assessed on the indemnity basis – where claim asserted “novel” duty of care on the principal certifying authority to avoid pure economic loss to subsequent purchaser – where close legal and factual analysis of relationships between parties required – where no lay or expert evidence served on plaintiff at time of offer – not unreasonable to refuse to settle

Cases Cited:

Chan v Acres (No 3) [2016] NSWSC 1389
Jones v Bradley (No 2) [2003] NSWCA 255
Ku-ring-gai Council v Chan [2017] NSWCA 226
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344

Category:

Costs

Parties:

Ku-ring-gai Council (Appellant)
Rebecca Chan (First Respondent)
Warren Cox (Second Respondent
Robert Acres (Third Respondent)
Mitchell Howes Civil & Structural Engineers Pty Ltd (Fourth Respondent)

Representation:

Counsel:

 

P J Bambagiotti with V Misra (Appellant)
M Dempsey SC with M Klooster (First and Second Respondents)
No appearance (Third Respondent)
Mitchell Howes Civil & Structural Engineers Pty Ltd (Fourth Respondent) (Submitting appearance)

 

Solicitors:

  Mills Oakley (Appellant)
Snelgroves Lawyers & Notary Public (First and Second Respondents)
Gilchrist Connell Lawyers (Fourth Respondent)

File Number(s):

2015/377941

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2015] NSWSC 1885

Date of Decision:

11 December 2015

Before:

McDougall J

File Number(s):

2015/48496

Judgment

1. THE COURT: The appeal by the Council (the fourth defendant below) from the judgment entered in favour of Ms Chan and Mr Cox (the plaintiffs below) was allowed: Ku-ring-gai Council v Chan [2017] NSWCA 226. The question of the costs at first instance was not addressed because the notice of appeal did not state the costs orders sought by the Council in the event its appeal was successful. That was due to the notice of appeal being filed before the costs of the proceedings below were determined: Chan v Acres (No 3) [2016] NSWSC 1389.

2. Order 7 made by this Court directed those parties to confer with a view to agreeing on the costs orders that should be made between them in relation to the proceedings at first instance. In the absence of agreement, the parties were to exchange written submissions, any remaining costs question then to be decided on the papers.

3. The…