Lucas Earthmovers Pty Limited v Anglogold Ashanti Australia Limited (No 2)

Lucas Earthmovers Pty Limited was a party to a contract with Anglogold Ashanti Australia Limited for the construction of a road to a remote mine site in Western Australia. Lucas brought claims for breach of contract, misleading or deceptive conduct, and negligence. The negligence claim was abandoned at the trial's commencement. Lucas sought damages for time-related costs due to delays, consequential losses, and additional work variations. The trial was extensive, involving 19 witnesses and over 5,000 documents. Lucas did not succeed on all claims; it failed on the time-related costs and misleading or deceptive conduct claims but succeeded partially on two consequential claims and two of seven other variation claims.

The court had to decide on the apportionment of costs between the parties. Anglogold Ashanti Australia Limited argued that it should receive at least 60% of its costs, while Lucas should receive no more than 10%. This would mean Anglogold Ashanti Australia Limited should receive at least 50% of its costs. The court considered the unsuccessful claims and the extent of evidence presented on them. It determined that Lucas's unsuccessful claims for time-related costs and misleading or deceptive conduct were significant and consumed most of the trial's evidence. The court rejected mathematical analyses of the evidence, emphasizing that cost apportionments are matters of impression and evaluation.

The court ruled that Lucas should recover 35% of its costs, which would be assessed on a lump sum basis by a Registrar. This decision acknowledged the complexity and extent of the unsuccessful claims while also recognizing the partial success on some claims. The court's order reflects a balanced approach to cost apportionment in light of the mixed outcomes of the litigation.