Schmuelly v Elrob Construction Group Pty Ltd (No 4)

The plaintiff, Schmuelly, commenced an action against the defendant, Elrob Construction Group Pty Ltd, and its director, seeking damages for alleged breaches of contract and negligence in the construction of a residential property. The case was heard in the Supreme Court of New South Wales. Schmuelly claimed damages in the amount of $3.66 million, following a judgment in his favour against Elrob Construction Group Pty Ltd for $1.13 million. The central legal issue before the court was whether Schmuelly was entitled to the usual costs order given that Elrob Construction Group Pty Ltd had made no submission to the contrary.

The court examined the principle that a party is generally entitled to recover costs as of course unless the contract or statute otherwise provides. In this case, there was no contract or statutory provision that would prevent the plaintiff from recovering his costs. Moreover, the defendant had not raised any objections or submissions that would counter the plaintiff's entitlement to the usual costs order. The court noted that the absence of any submissions from the defendant in this respect was significant, as it indicated a tacit acceptance of the plaintiff's entitlement to such costs. Therefore, the court found that the plaintiff was entitled to the usual costs order against the defendant.

The court made a costs order in favour of the plaintiff, Schmuelly, against the defendant, Elrob Construction Group Pty Ltd. This order was made in accordance with the principle that a party is generally entitled to recover costs unless there is a specific provision to the contrary. The absence of any submissions from the defendant regarding the costs further supported the plaintiff's entitlement to the usual costs order. Consequently, the court ruled that Schmuelly was entitled to recover his costs from Elrob Construction Group Pty Ltd.