Renbar Constructions Pty Ltd v Sader; Sader v Renbar Constructions Pty Ltd (No 2)

[2022] NSWSC 472

Supreme Court

New South Wales

Medium Neutral Citation:

Renbar Constructions Pty Ltd v Sader; Sader v Renbar Constructions Pty Ltd (No 2) [2022] NSWSC 472

Decision date:

20 April 2022

Jurisdiction:

Equity - Technology and Construction List

Before:

Stevenson J

Decision:

Defendant to pay costs of plaintiff and cross-defendant to pay costs of cross-claimant unless both parties agree that plaintiff should have 75% of its costs

Catchwords:

COSTS – where plaintiff successful on its claim and cross-claimant substantially successful on his cross-claim; whether plaintiff bettered its Calderbank offer; whether plaintiff should have a proportion of its costs rather than there being costs orders following the event in the claim and cross-claim

Cases Cited:

Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322

Renbar Constructions Pty Ltd v Sader; Sader v Renbar Constructions Pty Ltd [2022] NSWSC 172

Category:

Costs

Parties:

Renbar Constructions Pty Ltd (Plaintiff/Cross-Defendant)
Mark Anthony Sader (First Defendant/Cross-Claimant)
Sandra Sader (Second Defendant)

Representation:

Counsel:
M Klooster with F Clark (Plaintiff/Cross-Defendant)
J Hyde (Defendants/Cross-Claimant)

Solicitors:
New South Lawyers (Plaintiff/Cross-Defendant)
Wilkinson Building & Construction Lawyers (Defendants/Cross-Claimant)

File Number(s):

2019/368077

Judgment

1. I published my principal judgment in this matter on 25 February 2022. [1]

   1. Renbar Constructions Pty Ltd v Sader; Sader v Renbar Constructions Pty Ltd [2022] NSWSC 172.

2. I shall use the same abbreviations here as in that judgment.

3. I made final orders on 25 March 2022 and entered judgment in favour of Renbar against Dr Sader in the sum of $1,140,335.62.

4. The parties agreed to a notation on the order showing that that sum was comprised of:

1. an order in favour of Renbar against Dr Sader of $1,575,766.61 representing the cost of works of $3,266,198.61 less the amount paid by Dr Sader of $1,690,432; and

2. an award in favour of Dr Sader against Renbar for $440,931.06 being the amount recovered on the cross-claim.

5. The judgment entered on 25 March 2022 reflected the fact that Renbar had obtained complete success on its claim, and that Dr Sader had achieved substantial, but not complete, success on his cross-claim.

6. I have now received submissions as to costs.

7. Renbar relies on a Calderbank offer served on 18 June 2021 in which it offered to settle all claims, that is including Dr Sader’s cross-claim, for $1.3 million inclusive of costs.

8. The offer disclosed that Renbar’s solicitor/client costs to that point were $300,000.

9. It is unclear to me that Renbar has achieved a result that is better than that offer.

10. The offer exceeded the amount of the judgment by a little under $160,000.

11. Whether or not Renbar has obtained a result beter than its offer depends upon whether its party/party costs, at the time of the offer, were greater or more than that figure of $160,000.

12. If Renbar’s party/party costs were, then, more than $160,000, it has bettered the offer. On the other hand, if Renbar’s party/party costs were, then, less than $160,000, it has not done so.

13. That is not a matter that I can determine and, indeed, not a matter that could be established without an assessment now being made of Renbar’s then party/party costs.

14. In those circumstances I cannot see how the service of the Calderbank offer can give rise to a special costs order in favour of Renbar. [2]

    2. See, for example, the discussion by Basten JA in Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 at [145] and [150].

15. Otherwise, as each party has, in effect, achieved success in relation to their respective claims, the obvious order to make is that each party pay the other’s costs on the ordinary basis in respect to their respective claims.

16. However, as Mr Klooster pointed out on behalf of Renbar, “the prospect of costs orders flowing each way is an unattractive proposition for both parties” and would “only put both parties to more trouble and expense and impose an unnecessary burden in costs negotiation and assessment”.

17. In those circumstances, Mr Klooster suggested, in the alternative, that I should simply order that Renbar have 90% of its costs “given the time incurred dealing with matters raised in the Cross-Claim”.

18. It is true that less hearing time was spent on Dr Sader’s cross-claim than was spent on Renbar’s claim, but I think an order to the effect suggested by Mr Klooster would not properly reflect the extent to which the parties have incurred costs on the cross-claim, as opposed to the claim. I think it likely that the parties have spent more like 25% of their costs, including expert costs, on the cross-claim issues.

19. In those circumstances, I propose to give the parties an option.

20. The first option is an order that Dr Sader pay Renbar’s costs of Renbar’s claim and that Renbar pay Dr Sader’s costs of Dr Sader’s cross-claim.

21. Alternatively, an order, in final satisfaction of all costs entitlements, that Dr Sader pay 75% of Renbar’s total costs.

22. If both parties agree that I should make the latter order, rather than the former, and advise my Associate by 5pm on 22 April 2022 of that agreement, I will make the latter order.

23. If I hear of no such agreement by 5pm on 22 April 2022, I will make the former order without further reference to the parties.

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Endnotes