MPM Constructions Pty Limited v Michael Triguboff

[2004] NSWSC 764

CITATION:	MPM Constructions Pty Limited v Michael Triguboff & Anor [2004] NSWSC 764
HEARING DATE(S):	30/07/04
JUDGMENT DATE:	26 August 2004
JURISDICTION:	Equity Division Technology and Construction List
JUDGMENT OF:	Einstein J
DECISION:	[see paragraph 22]
CATCHWORDS:	Costs
PARTIES :	MPM Constructions Pty Limited ACN 003 910 601 (Plaintiff) Micahel Triguboff (First Defendant) Eleanora Triguboff (Second Defendant)
FILE NUMBER(S):	SC 55024/02
COUNSEL:	Mr T Lynch, Ms Dolenec (Plaintiff) Mr G Watson SC, Ms T Wong (Defendants)
SOLICITORS:	Snelgroves (Plaintiff) MasseyBailey (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY AND CONSTRUCTION LIST

Einstein J

Thusday 26 August 2004

55024/02 MPM CONSTRUCTIONS PTY LIMITED v MICHAEL TRIGUBOFF & ANOR

JUDGMENT

Costs

1 Both parties have furnished written submissions in relation to costs of the proceedings.

2 The material background to the costs determination and the reasons for making the usual order are given in the plaintiff’s submissions which are presently adopted in this regard.

3 The plaintiff sued:

(a) alleging repudiation of the contract by the defendants, and

(b) claiming damages for:

(i) the amount of P/Claim 11 $110,561.84

(ii) the amount of P/Claim 12 $292,313.98

(iii) non return of retention moneys $120,231.97

(iv) loss of profits of $330,000.00

(v) miscellaneous other heads $60,000.00
$913,107.79

alternatively to damages a quantum meruit.

4 The defence:

(a) denied repudiation;

(b) denied there had in any event been any damage suffered, and

(c) asserted a set off as per the cross-claim.

5 The cross-claim sought:

(a) the cost of rectifying defects- $213,734.00

(b) completion costs - $1,622,040.00

Ultimately a total of $1,835,774.00.

6 Costs follow the event unless the Court otherwise orders.

7 For costs purposes “the event” for:

(a) the whole of the plaintiff’s claim, and

(b) the defendant’s claim for completion costs

was the determination of the repudiation issue. It occupied the great bulk of the time of hearing. The quantum evidence was not extensive and neither party devoted any significant effort to it.

8 The plaintiff succeeded on that issue.

9 This was not a case where in respect of any discrete head of claim upon which the plaintiff did not succeed the defendant:

(a) qualified an expert, or

(b) called a witness,

who would not have been called but for one or other head of claim upon which the plaintiff failed.

10 The circumstance that the quantum obtained was less than that claimed is not a circumstance that would itself suggest the court “otherwise orders”.

11 There is no reason that costs of:

(a) the plaintiff’s claim

(b) the defendant’s completion costs claim

should not follow “the event”.

12 The repudiation finding did not determine the defendant’s claim for rectification costs.

13 The finding that the defendant was entitled to $6,212 on its claim for rectification costs was not “the event” for the purposes of the claim for rectification costs.

14 The Eccles defects report was served by the plaintiff on 4 November 2003.

15 The hearing commenced on 8 December 2003.

16 The defendants’ case on that issue was that there should be a finding that their were rectification costs of $213,734.00.

17 Thus, for the purposes of the defendants’ claim for rectification costs the “practical” issue was whether the defendants would do better than $6,212.

18 The defendants did not succeed on that case, the Referee found no evidence in their case sufficient for that purpose. The finding was made because in the Eccles report dated 20.05.03 the plaintiff admitted liability on that head for:

(a) specific defects

(b) for a sum of $6,212.

19 The rejection of the defendants’ claim for more than $6,212 was relevantly “the event” for the rectification claim. It was won by the plaintiff. Again, there are no other relevant countervailing considerations.

20 In respect of the vacation of the hearing fixed for 13 February 2004 the necessity for that to occur was due entirely to the personal circumstances of Mr Lynch, who accepted personal liability to pay the costs thrown away in that regard: cf letter from Mr Lynch to Mr Callaghan of 10 February 2004.

21 There is no reason why the costs thereby thrown away be borne by the defendant.

Orders

22 The Court's orders are as follows:

1. The report of the referee herein, Mr Peter Callaghan SC, dated 22.06.04, be adopted.

2. Judgment for the plaintiff in the sum of:

(a) $230,536.81, and
(b) interest of $29,494.43 to 29th July 2004.


3. Mr Terrence Lynch of Counsel to pay the parties’ costs thrown away because of the vacation of the hearing fixed for 13.02.04.

4. Otherwise than as provided in 3 above, the defendants to pay the plaintiff’s costs of the proceedings including the cost of transcripts for 30.07.04.

I certify that paragraphs 1 - 22
are a true copy of the reasons
for judgment herein of
the Hon. Justice Einstein
given on 26 August 2004

___________________
Susan Piggott
Associate

Last Modified: 09/08/2004