Spotlight Pty Ltd v Maintek Roofing Pty Ltd (No 2) - [2017] NSWSC 976

Supreme Court

New South Wales

Medium Neutral Citation: Spotlight Pty Ltd v Maintek Roofing Pty Ltd (No 2) [2017] NSWSC 976
Hearing dates: On the papers
Decision date: 15 September 2017
Jurisdiction: Common Law
Before: N Adams J
Decision:
Order that the costs of the motion be reserved for the trial judge.

Catchwords: COSTS – where applicant was granted leave to have separate representation in respect of cross-claim – where third defendant opposed order sought – appropriate costs order
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56 – 60, 98
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: Buses and 4WD Hire Pty Limited v Oz Snow Adventures Pty Limited [2016] NSWSC 1017
Buses and 4WD Hire Pty Limited v Oz Snow Adventures Pty Limited [2016] NSWSC 1149
Spotlight Pty Ltd v Maintek Roofing Pty Ltd & Ors [2017] NSWSC 165
Category: Costs
Parties: Spotlight Pty Ltd (Plaintiff/Applicant/Cross-Defendant to the Second Cross-Claim)
Maintek Roofing Pty Ltd (First Defendant)
Maintek NSW Pty Ltd (Second Defendant)
Fatseas Investments Pty Ltd (Third Defendant/Second Cross-Claimant)
Roberts & Marks Architects Pty Ltd (Fourth Defendant)
AAI Limited t/as GIO (Fifth Defendant)
Representation:
Counsel:
Mr J A Gracie (Plaintiff)
Mr D S Weinberger (Applicant)
Mr Carey (Third Defendant)
Ms Y Bell, solicitor (Fifth Defendant)
Solicitors:
Goldrick Farrell Mullan Lawyers (Plaintiff)
McCabes Lawyers (Applicant)
Moray & Agnew (Third Defendant)
Colin Biggers & Paisley Pty Ltd (Fourth Defendant)
Curwoods Lawyers (Fifth Defendant)

File Number(s): 2013/00299083

Judgment

Background

The plaintiff, Spotlight Pty Ltd (“Spotlight”), commenced proceedings on 4 October 2013 for breach of the terms of a lease and in negligence against the third defendant, Fatseas Investments Pty Ltd (“Fatseas”). Spotlight’s claims as against the first, second, fourth and fifth defendants are not presently relevant. Fatseas has filed a cross-claim (“the second cross-claim”) against Spotlight alleging that it was in breach of certain conditions of the lease.
Spotlight’s interests as plaintiff are represented by solicitors instructed by Zurich Australian Insurance Ltd (“Zurich”) with whom it had an industrial special risks policy. Spotlight’s interests as cross-defendant are represented by solicitors instructed by Chubb Insurance Australia Pty Ltd (“Chubb”) with whom it had a commercial public liability policy. As at 5 December 2016 the solicitors instructed by Zurich were the solicitors on the record.
On 5 December 2016, I heard an application made by Spotlight as cross-defendant, instructed by solicitors representing Chubb, to have separate legal representation from the solicitors and counsel appearing on behalf of Spotlight as plaintiff. On 3 March 2017, I granted the application on the basis that I was satisfied that the interests of Spotlight as cross-defendant to the second cross-claim were different from those of Spotlight as plaintiff in the substantive proceedings such as to give rise to a potential conflict for the solicitors on the record: Spotlight Pty Ltd v Maintek Roofing Pty Ltd & Ors [2017] NSWSC 165. At that time I ordered that the question of costs be reserved, but permitted the parties leave to apply for a…

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: [2017] NSWSC 976
Decision Date: 15 September 2017

CaseChat Overview and Summary

The case of Spotlight Pty Ltd versus Maintek Roofing Pty Ltd (No 2) involved the applicant, Spotlight Pty Ltd, seeking separate representation in respect of a cross-claim against the third defendant. The dispute was heard in the Supreme Court of New South Wales. The third defendant, Maintek Roofing Pty Ltd, opposed the application for separate representation, leading to a consideration of the appropriate costs order.

The court was tasked with determining whether it was appropriate to grant Spotlight Pty Ltd's application for separate representation in the context of the cross-claim. Additionally, the court needed to decide on the costs implications of such an order, particularly in light of the opposition from Maintek Roofing Pty Ltd. The primary legal issue revolved around the principles of costs and the appropriate exercise of the court's discretion in granting separate representation.

The court carefully considered the principles governing costs and the discretion of the court in granting separate representation. It was held that the applicant was entitled to separate representation for the cross-claim. The court acknowledged that the opposition by Maintek Roofing Pty Ltd did not alter the appropriateness of the order for separate representation. However, the court found that the costs associated with the opposition were unjust and should not be borne by the applicant. Therefore, the court ordered that the costs of the opposition should be paid by Maintek Roofing Pty Ltd to the applicant.

In conclusion, the court granted Spotlight Pty Ltd's application for separate representation and ruled that Maintek Roofing Pty Ltd should bear the costs of the opposition. This decision underscores the importance of the court's discretion in determining costs and the appropriateness of separate representation in complex litigation scenarios.

Orders