Rapid Metal Developments (Aust) Pty Ltd v Rildean Pty Ltd (No 4) - [2010] NSWSC 165

CITATION: Rapid Metal Developments (Aust) Pty Ltd v Rildean Pty Ltd (No 4) [2010] NSWSC 165

HEARING DATE(S): 10 February 2010

JUDGMENT DATE :
9 March 2010

JUDGMENT OF: R A Hulme J

DECISION: Verdict and judgment for the plaintiff against the defendant in the sum of $4,873,504. The defendants are to pay the plaintiff's costs of the proceedings on the ordinary basis save in respect of the costs thrown away as a result of the adjournment of the trial on 3 March 2008 which are to be paid on an indemnity basis. These orders take effect on 10 February 2010 and interest is to run on $3,233,200 at the rate from time to time prescribed in schedule 5 to the Uniform Civil Procedure Rules from and after 10 February 2010 until payment.

CATCHWORDS: PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis - costs thrown away by adjournment of trial when amended defence filed at commencement of trial

LEGISLATION CITED: Civil Procedure Act 2005
Civil Procedure Rules 2005

CASES CITED: Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Rapid Metal Developments (Aust) Pty Ltd v Rildean Pty Ltd [2009] NSWSC 571
Rapid Metal Developments (Aust) Pty Ltd v Rildean Pty Ltd (No 2) [2009] NSWSC 1416
Rapid Metal Developments (Aust) Pty Ltd v Rildean Pty Ltd (No 3) [2010] NSWSC 7

PARTIES: Rapid Metal Developments (Australia) Pty Limited (Plaintiff)
Anthony De Vries and Riad Tayeh as joint administrators of Rildean Pty Limited (Defendants)

FILE NUMBER(S): SC 13806/05

COUNSEL: Mr V R Gray (Plaintiff)
Mr M Ashhurst SC with Mr C Bova (Defedants)

SOLICITORS: JGP Lawyers
PMF Legal

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

9 March 2010

13806/05 RAPID METAL DEVELOPMENTS (AUST) PTY LIMITED v ANTHONY DE VRIES & RIAD TAYEH AS JOINT ADMINISTRATORS OF RILDEAN PTY LIMITED

JUDGMENT

1 HIS HONOUR: This matter was heard over six days in March 2009. On 26 June 2009 I gave judgment on the question of liability: Rapid Metal Developments (Aust) Pty Ltd v Rildean Pty Ltd [2009] NSWSC 571.

2 On 16 December 2009 I gave judgment dismissing the defendant’s motion seeking the recall of the above judgment: Rapid Metal Developments (Aust) Pty Ltd v Rildean Pty Ltd (No 2) [2009] NSWSC 1416.

3 On 10 February 2010 I gave judgment as to quantum and directed the parties bring in agreed short minutes of orders to reflect the conclusions in that judgment: Rapid Metal Developments (Aust) Pty Ltd v Rildean Pty Ltd (No 3) [2010] NSWSC 7. In that judgment I said that subject to any special costs orders being sought by the parties, the defendant should pay the plaintiff’s costs of the proceedings, and granted liberty to apply upon seven days notice.

4 Agreed short minutes of order have now been provided but also the plaintiff has sought an order that its costs of an earlier adjournment be paid on an indemnity…

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.

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Details

Case: [2010] NSWSC 165
Decision Date: 9 March 2010

CaseChat Overview and Summary

In the case of Rapid Metal Developments (Aust) Pty Ltd v Rildean Pty Ltd (No 4), the parties were engaged in a legal dispute that was heard in the Supreme Court of Victoria. The primary subject of the litigation was a dispute related to an engineering and construction contract, where Rapid Metal Developments alleged that Rildean Pty Ltd had breached the terms of their agreement, resulting in financial loss. The dispute was escalated to the Supreme Court, where both parties sought relief and damages.

The legal issues that the court had to address included the interpretation of the contractual terms, the assessment of damages, and the allocation of costs. Specifically, the court needed to determine whether the defendant's conduct warranted an indemnity costs order, given that the amended defence was filed at the commencement of the trial after an adjournment for the same reason. The court also had to consider the general principle that costs should follow the event, and whether there were any exceptional circumstances that justified departing from this principle.

The court, in its judgment, closely examined the conduct of both parties leading up to the trial. It was found that the defendant's delay in filing the amended defence, despite having an opportunity to do so earlier, was unreasonable and prejudicial to the plaintiff. The court held that the defendant's actions were such that they warranted an order for costs on an indemnity basis. The court reasoned that the general rule of costs following the event was not inflexible and could be departed from when the conduct of a party was such that it threw away their costs. The court emphasised the importance of procedural fairness and the need to discourage dilatory tactics in litigation.

The final orders of the court included an indemnity costs order against the defendant for the costs incurred by the plaintiff up to the point of the adjournment. This decision underscored the importance of timely and diligent conduct in litigation, and the court's willingness to impose costs consequences for failure to adhere to procedural requirements.

Orders