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The Owners - Strata Plan 61162 v Lipman

The Owners - Strata Plan 61162 v Lipman

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Case Copied 23 May 2014 79 min read

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Supreme Court

New South Wales

Medium Neutral Citation: The Owners - Strata Plan No. 61162 v Lipman The Owners Strata Plan No 61162 v Building Insurer's Guarantee Corporation [2014] NSWSC 622
Hearing dates: 29/04/2014, 30/04/2014
Decision date: 23 May 2014
Jurisdiction: Equity Division - Technology and Construction List
Before: McDougall J
Decision:
No order for indemnity costs. Defendants to pay 40% of plaintiff's costs, excluding costs relating to the applications for special costs orders, assessed on the ordinary basis. Those costs to be set off against unsatisfied costs orders in favour of defendants. Decline to order interest on costs. No other order as to costs.

Catchwords:
PROCEDURE - costs - departing from the general rule - general discretion as to costs - whether the court should "order otherwise" as to costs where plaintiff unsuccessful on several claims - application of Uniform Civil Procedure Rules 2005 (NSW) r 42.14

PROCEDURE - costs - costs of mediation - where mediation undertaken at consent direction of the Court - whether costs of mediation are costs in the proceedings

PROCEDURE - costs - departing from the general rule - offers of compromise and Calderbank offers - Whether unreasonable for defendants to reject offers of compromise and Calderbank offers where minimal evidence served at the time of the offer - whether unreasonable for defendants to reject offers of compromise and Calderbank offers where no indication of costs incurred

PROCEDURE - costs - departing from the general rule - whether costs should be apportioned in cases where there are numerous claims - whether costs should be apportioned where parties have entire or substantial success on some claims but not others - whether costs should be apportioned in relation to discrete claims - how costs can reflect in a practical way the extent to which each of the parties were successful on different claims
PROCEDURE - costs - Interest on costs - whether interest on costs should be granted where no explanation before the court for delay in proceedings - whether there is a need for explanation before an interest on costs order in relation to unexplained and extreme delay can be made - application of s 101 Civil Procedure Act 2005 (NSW)
Legislation Cited: Civil Procedure Act 2005 (NSW)
Home Building Act 1989 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333
CJD Equipment v A&C Constructions Pty Ltd [2010] NSWSC 502
Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd [2008] NSWSC 1423
Dean v Stockland Property Management Pty Ltd (No 2) [2010] NSWCA 141
Drummond and Rosen Pty Ltd v Easey (No 2) [2009] NSWCA 331
Harltons CJC Pty Ltd v Fitzgerald (No 4) [2014] NSWSC 523
Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375
Hughes v Western Australian Cricket Assn (Inc) (1986) 8 ATPR 40-748
Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd (No 2) (2013) 84 NSWLR 436
Jones v Trad (No 3) [2013] NSWCA 463
Jones…

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: [2014] NSWSC 622
Decision Date: 23 May 2014

CaseChat Overview and Summary

The Owners of Strata Plan 61162 filed an action against Lipman, seeking damages for breaches of strata title legislation, negligence, and for an injunction. The case was heard in the Supreme Court of New South Wales. The primary focus of the dispute was on the allocation of costs, particularly in light of the plaintiff's partial success and the procedural steps taken during the litigation, including mediation and various offers of compromise.

The court had to address several legal issues, including whether the general rule on costs should be departed from given the plaintiff's partial success, the treatment of mediation costs, and the reasonableness of rejecting offers of compromise. Furthermore, the court considered how costs should be apportioned where the parties had varying degrees of success on different claims, and whether interest on costs should be awarded given the unexplained delay in proceedings.

The court determined that, while the plaintiff had not succeeded on all claims, it was not unreasonable for the defendants to reject the offers of compromise and Calderbank offers given the minimal evidence available at the time. The court also ruled that the costs of mediation were costs of the proceedings, as the mediation was undertaken at the court's direction. In terms of interest on costs, the court held that no explanation for the delay was necessary before granting interest, given the extreme nature of the delay. The court concluded that costs should reflect the practical extent of success on different claims and ordered that costs be apportioned accordingly.

The final orders included the allocation of costs in a manner that reflected the varying degrees of success on different claims, the inclusion of mediation costs as costs of the proceedings, and the grant of interest on costs without requiring an explanation for the delay in proceedings.

Orders