Ossen Pty Ltd v K&S Developments Pty Ltd (Receivers and Managers Appointed); Clarke v Ossen Pty Ltd (No 2)

Ossen Pty Ltd was a developer who entered into an agreement with K&S Developments Pty Ltd to build a shopping centre. Ossen sought to recover costs from K&S, claiming that K&S was responsible for certain defects in the construction work. K&S, in turn, argued that Ossen was responsible for the defects and sought to recover costs from Ossen. The matter was heard in the Supreme Court of Western Australia. The central legal issue before the court was whether the general rule that costs follow the event should be applied, or if an alternative order should be made to reflect the partial success of the parties.

The court considered the nature of the dispute and the respective positions of the parties. It noted that both parties had succeeded in some respects and failed in others. The court acknowledged that the traditional approach of awarding costs to the prevailing party could result in an unjust outcome in cases of partial success. However, the court held that it was not appropriate to deviate from the general rule in this case, as the parties had largely succeeded in their respective claims. The court found that the general rule should apply, and costs should follow the event. The application for an alternative order was dismissed.

The court's decision highlights the importance of considering the specific circumstances of each case when determining the appropriate allocation of costs. While the general rule that costs follow the event is a well-established principle, the court retains discretion to make alternative orders in cases of partial success. However, such orders should only be made in exceptional circumstances where the traditional approach would result in an unjust outcome. In this case, the court found that the general rule was appropriate, and the application for an alternative order was dismissed. The final orders of the court were that Ossen Pty Ltd recover costs from K&S Developments Pty Ltd in the amount of $1,000,000, and that K&S Developments Pty Ltd recover costs from Ossen Pty Ltd in the amount of $500,000.