Morrison v Moss (No. 4)

[2020] NSWDC 243

District Court

New South Wales

Medium Neutral Citation:	Morrison v Moss (No. 4) [2020] NSWDC 243
Hearing dates:	On the papers
Date of orders:	27 May 2020
Decision date:	27 May 2020
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraphs 19-20
Catchwords:	COSTS – building and construction dispute – builder claim for non-payment – owner claim for defective works – operation of set-off – whether owner practically successful overall – whether conduct of builder warrants order for indemnity costs
Cases Cited:	Morrison v Moss & Anor [2019] NSWDC 746 Morrison v Moss (No.3) [2020] NSWDC 136
Category:	Principal judgment
Parties:	Mr J Morrison (Plaintiff) Mr A Moss (Defendant) Ms E Moss (Defendant)
Representation:	Counsel: Mr T Bland for the Plaintiff Defendants appeared in person   Solicitors: Osborn Law for the Plaintiff
File Number(s):	2018/121395
Publication restriction:	Nil

Judgment

BACKGROUND

1. In this case, concerning construction works carried out at Lake Macquarie; over distinct periods between August 2013 and September 2016, I published reasons for judgment on 12 December 2019[1] . One of the orders was for referral of the question of rectification costs to a referee. On 23 April 2020[2] , I published my reasons for the almost entire adoption of the referee’s report. This, then, leaves the Court to make orders for the disposition of the proceeding, including the order for costs. On the issue of costs, I indicated my preliminary view that costs of the referral process (including the application for adoption) should be subsumed within the general order of costs for proceedings. No party subsequently took issue with this view.

   1. Morrison v Moss & Anor [2019] NSWDC 746.

   2. Morrison v Moss (No.3) [2020] NSWDC 136.

2. With the exception of the issue of costs, the parties have substantially agreed on dispositive orders. I will deal with those orders after addressing the question of costs.

COSTS

Preliminary observation

3. Curiously, the respective versions of short minutes handed up to the Court both provided that costs are to be determined at a later date. This is not only contrary to earlier directions and communications made by the Court, but also to the circumstance that the parties have, in fact, and, in accordance with the Court’s directions, made submissions on costs. I presume it was a typographical mistake left over from earlier versions of short minutes of order.

4. I note that at paragraphs 46-47 of my reasons for judgment on 23 April 2020, the parties were directed to prepare short minutes of order, including provision of costs, in an ordered sequence. On 12 May 2020, and due to some expressed uncertainty by one or both of the parties as to whether they should be making submissions as to costs, I arranged through my Associate to email the parties to confirm that this was the case.

5. It has since transpired that the defendants (‘the Builders’) and, thereafter the plaintiff (‘the Owner’) (purportedly in reply to the Builders’ submission), served written submissions on costs outside of the periods of time provided for…