Robust Builders Pty Ltd v Barai & Anor (No.8) - [2023] NSWDC 482

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
Wentworth v Rogers [1999] NSWCA 403

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

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.
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).

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 482
Decision Date: 10 November 2023

CaseChat Overview and Summary

Robust Builders Pty Ltd initiated proceedings against Barai and another party, seeking relief related to a contractual dispute. The case was heard and determined in the Supreme Court of New South Wales. The plaintiff sought an indemnity costs order against the defendants for their failure to comply with court directions and other defaults. Additionally, the plaintiff sought a personal costs order against a director who had been personally involved in the proceedings on behalf of the unsuccessful company.

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

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.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 Wentworth v Rogers [1999] NSWCA 403
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