District Court
New South Wales
Medium Neutral Citation: Robust Builders Pty Ltd v Barai & Anor (No.8) [2023] NSWDC 482 Hearing dates: On the papers Date of orders: 10 November 2023 Decision date: 10 November 2023 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph [130]-[131]
Catchwords: COSTS – application for indemnity costs order against unsuccessful party – application for personal costs order against director carrying on the proceeding for the unsuccessful company
CIVIL PROCEDURE – the Court’s expectations as to timeliness in the making of applications for special costs orders arising from suggested non-compliance with court directions or other defaults prior to hearing
CIVIL PROCEDURE – (implied) application for stay of execution of judgment pending appeal – applicant’s refusal to serve Notice of Appeal which the applicant asserts was lodged
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56(3), 98(1)(b), 98(1)(c), 98(2), 135
Corporations Act 2001 (Cth), ss 459P, 462, 464
Uniform Civil Procedure Rules 2005, r 36.13(3A), 42.2, 42.5, sub-rule 7.2(a)(iv)
Cases Cited: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340
Huntsman Chemical Co Aust Ltd v International Pools Aust Pty Ltd (1995) 36 NSWLR 242 per Kirby P
Ingot Capital Investment v Macquarie Equity Capital Markets Ltd (No.7) [2008] NSWSC 199
Ingot v Macquarie Equity Capital Markets Ltd [2003] NSWSC 1102
Jaken Properties Australia Pty Ltd v Naaman (No.2) [2023] NSWCA 254
Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737
Knight v FP Special Assets (1992) 174 CLR 178
May v Christodoulou (2011) 80 NSWLR 462
Robust Builders Pty Ltd v Barai & Anor [2023] NSWDC 371
Robust Builders Pty Ltd v Barai & Anor (No.2) [2023]
Robust Builders Pty Ltd v Barai & Anor (No.6) [2023] NSWDC 376
Robust Builders Pty Ltd v Barai & Anor (No.7) [2023] NSWDC 404
Spalla v St George Motor Finance Ltd (No.8) [2006] FCA 1537
Texts Cited: New South Wales Civil Procedure Handbook 2023 (Thomson Reuters, 2023)
Ritchie’s Uniform Civil Procedure (NSW) (looseleaf, LexisNexis)
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
Background
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On 15 September 2023, I delivered reasons for judgment in the proceeding. The judgment was published on Caselaw (Robust Builders Pty Ltd v Barai & Anor (No.6) [2023] NSWDC 376. By order 5, I ordered that the builder pay the owners’ costs of the proceeding.
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On 3 October 2023, I dismissed the Builder’s application which was, in substance, to set aside the costs order made on 15 September 2023. My reasons for judgment were also published on Caselaw (Robust Builders Pty Ltd v Barai & Anor (No.7) [2023] NSWDC 404).
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- Case
- [2023] NSWDC 482
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the defendants' non-compliance with court directions justified an indemnity costs order, and if the personal involvement of the director warranted a personal costs order against him. The court considered the expectations of timeliness in making applications for special costs orders and the consequences of failing to adhere to court directions. The plaintiff argued that the defendants' conduct warranted such costs orders, while the defendants contended that the plaintiff's application was untimely and unjust.
In its decision, the court found that the defendants had indeed failed to comply with court directions and other defaults, justifying an indemnity costs order against them. However, the court determined that the plaintiff's application was not made in a timely manner and was therefore dismissed. Regarding the personal costs order, the court held that the director's personal involvement in the proceedings did not warrant such an order. The court emphasised the importance of adhering to timelines in making applications for special costs orders.
The court's final orders included dismissing the plaintiff's application for indemnity costs and personal costs. Additionally, the court denied an implied application for a stay of execution of judgment pending appeal, as the plaintiff had not served a Notice of Appeal as required by the court. The plaintiff was also ordered to pay the defendants' costs of the application for indemnity costs.
Orders
Orders of the court
See paragraph [130]-[131]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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