Pesec v Consolidated Builders Ltd (No 6) - [2021] ACTSC 250

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Pesec v Consolidated Builders Ltd (No 6)
Citation:	[2021] ACTSC 250
Hearing Dates:	On the papers
DecisionDate:	30 September 2021
Before:	McWilliam AJ
Decision:	The plaintiff is to pay the defendant’s costs on the ordinary party and party basis.
Catchwords:	COSTS – INDEMNITY COSTS – application for indemnity costs following plaintiff’s unsuccessful interlocutory application – whether circumstances justify departure from the general rule as to costs
Legislation Cited:	Court Procedures Rules 2006 (ACT) rr 1721, 1752
Cases Cited:	Australian Capital Territory v Lewis [2016] ACTCA 34; 311 FLR 77 Campbell v Blackshaw (No 2) [2019] ACTCA 28 Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 Donohue v Volanne Pty Ltd (No 3) [2021] ACTCA 20 Lewis v Australian Capital Territory (No 2) [2015] ACTSC 343 Pesec v Consolidated Builders Limited [2021] ACTCA 25 Pesec v Consolidated Builders Ltd(No 5) [2021] ACTSC 225
Parties:	Anthony Pesec ( Plaintiff) Consolidated Builders Limited ( Defendant)
Representation:	Counsel R Markham ( Plaintiff) M O’Meara SC with I Ahmed ( Defendant)
Solicitors Adero Law ( Plaintiff) Clayton Utz ( Defendant)
File Number:	SC 179 of 2020

McWilliam AJ:

On 9 September 2021, I delivered judgment in relation to an interlocutory application brought by the plaintiff regarding costs orders that had previously been made in a separate dispute between the parties: Pesec v Consolidated Builders Ltd(No 5) [2021] ACTSC 225 (Pesec (No 5)).

The defendant (CBL) now applies for indemnity costs of the application, pursuant to rr 1721(1) and 1752(1)(b) of the Court Procedures Rules 2006 (ACT) (Rules). The general rule under r 1721 is that the costs of a proceeding or of an application in a proceeding are in the discretion of the Court. Pursuant to r 1752(1)(b) of the Rules, the Court may order that costs be assessed on an indemnity basis.
The principle to be applied in the judicial exercise of the Court’s discretion is that usually there must be some special or unusual feature that justifies the Court in departing from the usual position that costs should be ordered to be paid on a party and party basis: see Lewis v Australian Capital Territory (No 2) [2015] ACTSC 343 (Lewis (No 2)) at [28], affirmed on appeal in Australian Capital Territory v Lewis [2016] ACTCA 34; 311 FLR 77 at [70], and cited with approval more recently in Donohue v Volanne Pty Ltd (No 3) [2021] ACTCA 20 at [22].
The defendant drew attention to the case of Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 232-234, where Sheppard J “helpfully distilled a number of guidelines for the exercise of the Court’s discretion to award indemnity costs” (being the language used in Lewis (No 2) at [29] in extracting the relevant passage). Of those, Sheppard J’s list of some of the circumstances where an indemnity costs order may be warranted, was also more…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Pesec v Consolidated Builders Ltd (No 6) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] ACTSC 250
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory heard an application from Consolidated Builders Limited (CBL) for indemnity costs against Anthony Pesec, the plaintiff, following an interlocutory application in a separate dispute between the parties. The plaintiff had applied for costs orders regarding previous proceedings, which the Court dismissed. The Court's discretion in awarding costs is generally to order costs on a party and party basis, but it may order indemnity costs if there are special or unusual features justifying a departure from this rule. The defendant argued that the plaintiff's application was hopeless and that the plaintiff unreasonably prolonged the proceedings. The plaintiff countered that the application was not hopeless and attempted to resolve the matter reasonably by offering to dismiss the application if the parties agreed to abide by any subsequent orders. The Court found that while the plaintiff's application was ultimately unsuccessful, it was not hopeless, and the plaintiff had attempted to resolve the matter in a reasonable way.

The Court considered the guidelines for awarding indemnity costs, including where proceedings are pursued in wilful disregard of known facts or established law and where allegations ought not to have been made or proceedings unduly prolonged by groundless contentions. The Court determined that the plaintiff's application was not so egregious as to warrant an indemnity costs order, as there were reasonable grounds for the application, and the plaintiff had attempted to resolve the matter in a reasonable way. The Court emphasised that the plaintiff's conduct should not be considered in a vacuum and that the plaintiff's offer to dismiss the application played a role in the Court's decision. Therefore, the Court ruled that the plaintiff should pay the defendant's costs on the ordinary party and party basis.

Orders