Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In liquidation) (No 2)

Seymour Whyte Constructions Pty Ltd (Seymour) and Ostwald Bros Pty Ltd (in liquidation) (Ostwald) were parties to proceedings in the New South Wales Court of Appeal concerning a dispute arising from a construction contract. The appeal and cross-appeal concerned the determination of an adjudication under the *Building and Construction Industry Security of Payment Act 1999* (NSW) and the associated costs of the proceedings.

The primary legal issues before the Court of Appeal were whether the primary judge erred in setting aside the adjudicator's determination and whether the Court should grant judgment in favour of Ostwald for the adjudicated amount, along with interest. The Court was also required to determine the appropriate orders for costs, given the partial success of both parties at trial and on appeal.

The Court of Appeal allowed the appeal and cross-appeal in part. It quashed the adjudicator's determination and entered judgment for Ostwald against Seymour in the sum of $2,505,237.58, plus interest. The Court noted an undertaking by Ostwald not to enforce the judgment without 14 days' notice to Seymour. In relation to costs, Seymour was ordered to pay 25 per cent of Ostwald's costs in the Equity Division and one-third of Ostwald's costs of the appeal and cross-appeal.