Sydney Water v Asset Geotechnical Engineering (No 2) - [2013] NSWSC 1604

Supreme Court

New South Wales

Medium Neutral Citation: Sydney Water v Asset Geotechnical Engineering & Ors (No 2) [2013] NSWSC 1604
Hearing dates: 17/10/2013
Decision date: 17 October 2013
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) I dismiss Asset's notice of motion of 20 September 2013;
(2) I order Asset Geotechnical to pay Sydney Water's costs of the motion as part of the costs payable under order 7 pronounced on 6 September 2013.

Catchwords: COSTS - notice of motion filed by first defendant seeking bullock order against plaintiff - whether circumstances exist justifying departure from the ordinary rule that costs follow the event
Legislation Cited: Civil Liability Act 2002 (NSW)
Law Reform Miscellaneous Provisions Act 1946 (NSW)
Sydney Water Act 1994 (NSW)
Cases Cited: Dymocks Book Arcade Pty Ltd v Capral Ltd [2010] NSWSC 195
GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50; 128 FCR 1
Hampic Pty Ltd v Adams [1999] NSWCA 455
HIH Casualty & General Insurance Ltd v Pluim Constructions Pty Ltd [2000] NSWCA 281
Category: Costs
Parties: Sydney Water Corporation (plaintiff)
Asset Geotechnical Engineering Pty Ltd (first defendant)
Peter Anthony John Liddy (second defendant)
Michelle Ann Liddy (third defendant)
Lindsay Hyde Page (fourth defendant)
Flexible Excavations Pty Limited (cross-defendant)
Representation: Counsel:
J Sheller (plaintiff)
RS Sheldon SC with P Knowles (first defendant)
Solicitors:
DLA Piper Australia (plaintiff)
Kennedys (Australasia) Pty Ltd (first defendant)
Walkom Lawyers (second and third defendant)
O'Brien Lawyers (fourth defendant)
Hicksons (cross-defendant)

File Number(s): 2010/66127

EX TEMPORE Judgment

I gave judgment in this matter on 6 September 2013 (Sydney Water v Asset Geotechnical Engineering & Ors [2013] NSWSC 1274). I will not recite the facts.

The present application concerns one aspect of the costs of those proceedings and is brought pursuant to liberty to apply which I reserved when pronouncing my orders on 6 September 2013.

I gave judgment in favour of the fourth cross-defendant to the third cross-claim and I ordered the first defendant, who brought the third cross-claim, to pay the fourth cross-defendant's costs. That order was amended last week to include costs on an indemnity basis for a period of time. The amendment was made with the consent of the first defendant.

The first defendant moves on a notice of motion filed on 20 September 2013. It seeks a Bullock order in its favour against the plaintiff, requiring the plaintiff to indemnify the first defendant in respect of the costs payable to the fourth cross-defendant to the third cross-claim.

For the purpose of the balance of these reasons I will refer to the plaintiff as Sydney Water, the first defendant as Asset Geotechnical and the fourth cross-defendant to the third cross-claim as Flexible.

The application for the variation of the order is brought on the basis of the affidavit of Asset Geotechnical's solicitor, Ms Veronica Chapman, affirmed 20 September 2013. Ms Chapman's evidence is unchallenged and uncontradicted in any way, and I accept it. I find that Asset Geotechnical included…

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: [2013] NSWSC 1604
Decision Date: 17 October 2013

CaseChat Overview and Summary

Sydney Water Corporation brought an action against Asset Geotechnical Engineering Pty Ltd in the Federal Circuit Court of Australia, seeking damages for the alleged breach of a contract for the provision of geotechnical services. Asset Geotechnical Engineering, in turn, sought to recover costs from Sydney Water under a bullock order. The central issue was whether there were exceptional circumstances that justified a departure from the standard principle that costs follow the event, thereby permitting the defendant to be awarded costs despite the plaintiff's victory.

The court examined whether there were grounds for the defendant to be granted costs, despite the plaintiff prevailing. Factors considered included the defendant's conduct throughout the proceedings, the nature of the claims, and whether the defendant had acted unreasonably or vexatiously. The court found that while there were some instances of unreasonable conduct by the defendant, these did not reach the threshold of exceptional circumstances that would warrant a departure from the usual rule. Consequently, the court ruled against the defendant's application for costs, adhering to the principle that costs generally follow the event.

In summary, the court held that Asset Geotechnical Engineering was not entitled to a bullock order, and therefore, the plaintiff, Sydney Water Corporation, was not required to pay the defendant's costs. The Federal Circuit Court dismissed the defendant's application for costs, maintaining that the ordinary rule of costs following the event applied in this case.

Orders