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 basis.

5 The matter was first listed for trial before Grove J on 3 March 2008. The record of proceedings for that date indicates that his Honour granted leave to the defendant to file in court an amended defence. It is also noted that on the application of the plaintiff, provoked by the amendment, the matter was stood out of that day’s list. His Honour ordered the defendant to pay the plaintiff’s costs of that day which were thrown away by the need for the adjournment. His Honour reserved to the trial judge any question of additional factors of costs relating to that adjournment.

6 By agreement, the application for indemnity costs in respect of the adjournment of that trial listing has been dealt with by way of written submissions.

7 I note that the court file indicates that the initiating summons was filed by the plaintiff on 8 November 2004. A defence was filed on 10 December 2004. Thus it was a further three years and three months before the amended defence was filed on 3 March 2008.

8 Included in the submissions of the plaintiff is the assertion that it was not until the Friday, the last business day before the trial was fixed to commence, that the defendant alerted the plaintiff to the proposal to file the amended defence at the commencement of the trial. It is also asserted that, “the affect of the amendments made was to recast the issues in the case and require the plaintiff to prepare for trial on a different basis to that on which it had prepared based on the original defence”. These assertions had not been disputed in the written submissions on behalf of the defendants.

9 I accept that to order that costs be paid on an indemnity basis is not usual but that the Court has a discretion: s 98 Civil Procedure Act 2005 and Rule 42.5 Uniform Civil Procedure Rules 2005. There is a useful discussion of the relevant principles in the judgment of Basten JA in Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 and in some of the authorities to which his Honour referred. In my view having regard to those authorities and to the overriding purpose of the Civil Procedure Act set out in s 56, it would be appropriate in the circumstances of this case to grant the plaintiff’s application and order that the defendants pay the plaintiff’s costs that were thrown away as a result of the adjournment of the trial on 3 March 2008 on an indemnity basis.

10 With the addition of an order to that effect, I make the orders set out in the agreed short minutes of order.

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.

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