Redmond v Masterton Canberra Pty Limited

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Redmond v Masterton Canberra Pty Limited

Citation:

[2016] ACTSC 242

Hearing Date:

9 May 2016

DecisionDate:

26 August 2016

Before:

Mossop AsJ

Decision:

The plaintiffs have leave to discontinue the proceedings. There is no order as to costs of the proceedings.

Catchwords:

COSTS – Exercise of costs discretion under Court Procedures Rules 2006 (ACT), rr 1706 and 1163 – Whether there should be any order for costs in favour of either party where substantive proceedings discontinued – Default rule under r 1163(1) that costs paid by discontinuing party – Not appropriate to decide merits of the case in order to resolve issue of costs – Default rule may be departed from where settlement occurs as a result of an agreement not involving surrender by either party – Neither party acted unreasonably in relation to the dispute – No order as to costs

Legislation Cited:

Court Procedures Rules 2006 (ACT), rr 1706, 1163

Cases Cited:

Fordyce v Fordham (2006) 67 NSWLR 497

Graham H Roberts Pty Ltd v Maurbeth Investments Pty Ltd (1974) 1 NSWLR 93
Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622

Rural and General Insurance Broking Pty Ltd v Australian Prudential Regulation Authority (2009) 231 FLR 199

Parties:

Michael James Redmond (First Plaintiff)

Laura Kate Keogh (Second Plaintiff)

Masterton Canberra Pty Limited (Defendant)

Representation:

Counsel

T Crispin (Plaintiffs)

S Robertson (Defendant)

Solicitors

Concorde Legal (Plaintiffs)

Wotton & Kearney (Defendant)

File Number:

SC 301 of 2015

Mossop AsJ:

Procedural background

1. The plaintiffs and the defendant entered into a standard form building contract for the construction of a single residential dwelling in the suburb of Crace.  The total construction price identified in the contract was $296,826.  The contract date was 17 February 2014. 

1. Under the contract the plaintiffs were required to pay the contract sum progressively in accordance with a progress claim schedule.  Construction of the dwelling commenced in about November 2014 after the contract was “validated” by the plaintiffs on 22 September 2014.

1. On 18 March 2015 the defendant issued the plaintiffs with a progress claim described as the “Fix Out progress claim”.  The amount of the claim was $65,029.  The progress claim was not paid by the plaintiffs until 8 March 2016.  At about this time the parties were in dispute because, as a result of delays in the commencement of the building work, some previously selected tiles had become unavailable and the defendant contended that the plaintiffs were liable for the increased costs of the tiles subsequently selected as well as a change in the colour of the vanity so as to match the newly selected tiles.  The defendant ceased work on the building during the period from about 2 April 2015 until 8 March 2016.

1. There was extensive correspondence between the parties.  It is apparent that the issue about the tiles and the vanity were only one of a number of areas of dissatisfaction on the part of the…