Lend Lease Retail Projects Pty Ltd v Construction Engineering (Aust) Pty Ltd & Ors

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No.7412 of 1998

LEND LEASE RETAIL PROJECTS PTY. LTD.	Appellant
v
CONSTRUCTION ENGINEERING (AUST.) PTY. LTD.	First Respondent
and
CLARKE HOPKINS AND CLARKE	Second Respondent

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JUDGES:	PHILLIPS, CHARLES and CALLAWAY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 February 2000
DATE OF JUDGMENT:	23 June 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 114

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Practice and procedure – Costs – Action for damages for personal injury -  Three defendants – Offer to contribute by one defendant to others – Not accepted because other defendants could not agree between themselves – Whether relevant to discretion as to costs – County Court Rules, Chapter I Rule 26.10.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. P.B. Murdoch Q.C. with Mr. J.D. Elliott	Lander & Rogers
For the First Respondent	Mr. T.J. Casey Q.C. with Mr. S. Le Grand	Deacons Graham & James
For the Second Respondent	Mr. S.W. Kaye Q.C. with Mr. D. Masel	Ebsworth & Ebsworth

PHILLIPS, J.A.:

1. I agree with Callaway, J.A. that, for the reasons he has given, the trial judge’s discretion miscarried as to costs and that the orders made below for costs should be set aside.  I agree too that, if what remains in dispute between the parties must be determined by the Court, the matter will have to be remitted to the trial judge for final adjudication.  One can only hope, however, that the parties will now resolve their remaining differences by agreement, without troubling the trial judge over a case that was determined in 1998.

CHARLES, J.A.:

1. I agree with Callaway, J.A., for the reasons he gives, that the trial judge's discretion miscarried as to costs, and that, subject to anything counsel might say, orders should be made as proposed by his Honour.

CALLAWAY, J.A.:

1. On Tuesday 25th August 1998 a trial began in the County Court in which Christopher McLean was plaintiff, suing by his litigation guardian, and there were four named defendants.  The plaintiff's claim was for personal injuries when he fell from a travellator in a shopping centre on to the floor below. The four named defendants were the occupier of the premises, the builder, the construction manager and the architect.  The plaintiff had already discontinued against the second defendant.  The first, third and fourth defendants are the present appellant and the first and second respondents respectively.  There were contribution proceedings between each of those three parties.  At a stage at which it was the sole defendant, the appellant had served a third party notice on the respondents.  An order was subsequently made to the effect that that notice stand as a notice of contribution directed to each of the respondents.  The first respondent had served notices of contribution on the appellant and the second respondent and the second respondent had served notices of contribution on the appellant and the first respondent.  The trial occupied ten days and the plaintiff was successful.  Judgment was entered in his favour in a substantial sum[1], which…