Robust Builders Pty Ltd v Barai & Anor (No.7) - [2023] NSWDC 404

District Court

New South Wales

Medium Neutral Citation: Robust Builders Pty Ltd v Barai & Anor (No.7) [2023] NSWDC 404
Hearing dates: On the papers
Date of orders: 03 October 2023
Decision date: 03 October 2023
Jurisdiction: Civil
Before: Abadee DCJ
Decision:
Paragraph 25

Catchwords:
JUDGMENTS AND ORDERS – building case – proceeding carried on for the plaintiff by its director – director’s application to ‘waive’ costs order imposed against plaintiff

COSTS – whether ultimate costs order should be modified to reflect successful party’s non-compliance with directions given during a proceeding
CIVIL PROCEDURE - observations on obligation of party to make any application for costs occasioned by reason of its adversary’s non-compliance with court directions at a time proximate to the non-compliance rather than at conclusion of proceeding
Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 96, 98
Uniform Civil Procedure Rules 2005 (NSW), rr 36.13, 42.1

Cases Cited:
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577
Northern Territory v Sangare (2019) 372 ALR 117
Oshlack v Richmond River Council (1998) 193 CLR 72
Robust Builders Pty Ltd v Barai [2023] NSWDC 371
Robust Builders Pty Ltd v Barai (No.2) [2023] NSWDC 372
Robust Builders Pty Ltd v Barai (No.3) [2023] NSWDC 373
Robust Builders Pty Ltd v Barai (No.4) [2023] NSWDC 374
Robust Builders Pty Ltd v Barai (No.5) [2023] NSWDC 375
Robust Builders Pty Ltd v Barai & Anor (No.6) [2023] NSWDC 376

Texts Cited:
Nil

Category: Costs
Parties: Robust Builders Pty Ltd (plaintiff/cross-defendant)
Mr P Barai (defendant/cross-claimant 1)
Mrs F Mahjabeen (defendant/cross-claimant 2)
Representation: Mr D Lambley (solicitor) for the defendants/cross-claimant
Mr R Mehndiratta (as director of and for the plaintiff/cross-defendant)

File Number(s): 2018/00259451
Publication restriction: Nil

REASONS FOR JUDGMENT

This proceeding involved a claim by a builder for unpaid invoices. That claim was defended by the owners, who brought their own cross-claim for damages for defective and incomplete works in breach of statutory warranties. The events giving rise to the litigation occurred between the second half of 2016 and August 2018. The hearing commenced in the August 2023 civil list hearings in Parramatta..
On 15 September 2023 I delivered reasons for judgment after a 12 day hearing. Those reasons were published on Caselaw (Robust Builders Pty Ltd v Barai & Anor (No.6) [2023] NSWDC 376).
The result of the litigation, in summary, was that the builder succeeded in respect to some of its claim for unpaid fees but the owners were also successful in establishing their claim of incomplete and defective works; and, further, by operation of set-off (under s 96 of the Civil Procedure Act 2005 (NSW)), the builder’s claim was effectively extinguished; leaving the owners with a (reduced) monetary judgment against the builder (order 3) plus an order for payment of interest (order 4). By order 5, I ordered that the plaintiff pay the cross-claimants costs of the proceeding.
Within the period of 14 days allowed by Court rules for applications for variations or the…

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: [2023] NSWDC 404
Decision Date: 03 October 2023

CaseChat Overview and Summary

Robust Builders Pty Ltd initiated legal proceedings against Barai and another party, referred to as Anor, in the context of a building case. The plaintiff, Robust Builders, was represented by its director who subsequently applied to modify a costs order imposed on the plaintiff. The dispute centred on whether the final costs order should be adjusted to account for the successful party's failure to adhere to specific directions issued during the course of the litigation. The court was required to deliberate on the appropriate circumstances under which a party may apply for a modification of costs due to the other party's non-compliance with court directions, and whether such an application should be made promptly following the non-compliance or at the conclusion of the proceeding.

The court examined the obligation of a party to promptly seek modification of costs in light of an opposing party's non-compliance with court directions. It was established that the director of Robust Builders, who was representing the company in the proceedings, had the responsibility to apply for a costs adjustment contemporaneously with the non-compliance. This was to ensure that any relief sought was timely and directly linked to the specific instance of non-compliance. The court emphasised that a delay in making such an application until the conclusion of the proceeding could undermine the effectiveness of the costs order and the procedural fairness intended by the court's directions. Consequently, the court considered the appropriateness of modifying the costs order in light of the timing of the application.

In reaching its decision, the court noted that the director's application to modify the costs order was made at the end of the proceedings, rather than at the time of the non-compliance. This timing was deemed inappropriate, leading the court to conclude that the ultimate costs order should not be altered. The court underscored the importance of adhering to procedural timeliness in applications for costs modifications to maintain the integrity of the judicial process and to ensure that parties are held accountable for their compliance with court directions. The court's ruling highlighted the need for parties to act promptly when seeking relief due to non-compliance, thereby preserving the intended fairness and efficiency of the litigation process.

The final orders of the court were that the application to modify the costs order was dismissed, and no adjustments were made to the original costs order imposed against Robust Builders. The court emphasised the importance of timely applications for costs modifications to uphold the principles of procedural fairness and accountability.

Orders

Orders of the court

Paragraph 25

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Robust Builders Pty Ltd v Barai & Anor (No.7) [2023] NSWDC 404
Hearing dates:	On the papers
Date of orders:	03 October 2023
Decision date:	03 October 2023
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	Paragraph 25
Catchwords:	JUDGMENTS AND ORDERS – building case – proceeding carried on for the plaintiff by its director – director’s application to ‘waive’ costs order imposed against plaintiff COSTS – whether ultimate costs order should be modified to reflect successful party’s non-compliance with directions given during a proceeding CIVIL PROCEDURE - observations on obligation of party to make any application for costs occasioned by reason of its adversary’s non-compliance with court directions at a time proximate to the non-compliance rather than at conclusion of proceeding
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 96, 98 Uniform Civil Procedure Rules 2005 (NSW), rr 36.13, 42.1
Cases Cited:	Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 Northern Territory v Sangare (2019) 372 ALR 117 Oshlack v Richmond River Council (1998) 193 CLR 72 Robust Builders Pty Ltd v Barai [2023] NSWDC 371 Robust Builders Pty Ltd v Barai (No.2) [2023] NSWDC 372 Robust Builders Pty Ltd v Barai (No.3) [2023] NSWDC 373 Robust Builders Pty Ltd v Barai (No.4) [2023] NSWDC 374 Robust Builders Pty Ltd v Barai (No.5) [2023] NSWDC 375 Robust Builders Pty Ltd v Barai & Anor (No.6) [2023] NSWDC 376
Texts Cited:	Nil
Category:	Costs
Parties:	Robust Builders Pty Ltd (plaintiff/cross-defendant) Mr P Barai (defendant/cross-claimant 1) Mrs F Mahjabeen (defendant/cross-claimant 2)
Representation:	Mr D Lambley (solicitor) for the defendants/cross-claimant Mr R Mehndiratta (as director of and for the plaintiff/cross-defendant)
File Number(s):	2018/00259451
Publication restriction:	Nil