Value Constructions Pty Ltd v Badra (No 2)

[2024] NSWCA 212

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Value Constructions Pty Ltd v Badra (No 2) [2024] NSWCA 212

Hearing dates:

On the papers (last submission 19 August 2024)

Date of orders:

02 September 2024

Decision date:

02 September 2024

Before:

Leeming and Kirk JJA, Griffiths AJA at [1]

Decision:

(1) The appellant is to pay the first respondent’s costs of the appeal, save that the first respondent is to pay the appellant’s costs of his application for indemnity costs.

(2) The appellant is to pay the second and third respondents’ costs of the appeal.

Catchwords:

COSTS – Indemnity costs – Offer of compromise – Calderbank offer – Real and genuine element of compromise – Degree of compromise assessed cumulatively – No explanation as to significant costs asserted to have been incurred before exchange of submissions – No reason first respondent should obtain advantage of consensus later broken out to alter precise sums awarded

COSTS – Active role played by second and third respondents appropriate and useful

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 20.26(5)

Cases Cited:

Fabre v Lui (No 2) [2015] NSWCA 312

Krolczyk v Winner t/as J Winner Building Services [2022] NSWCA 196

Synergy Scaffolding Services Pty Ltd v Alelaimat (No 2) [2024] NSWCA 11

Category:

Costs

Parties:

Value Constructions Pty Ltd (Appellant)

Mohamad Badra (First Respondent)
MMM Cement Rendering 1 Pty Ltd (Second Respondent)
Workers Compensation Nominal Insurer (Third Respondent)

Representation:

Counsel:

J Sleight (Appellant)
RJM Foord (First Respondent)
A Combe (Second and Third Respondents)

Solicitors:

McMahons Lawyers (Appellant)
Withstand Lawyers (First Respondent)
Hicksons Lawyers (Second and Third Respondents)

File Number(s):

2023 / 364755

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2023] NSWSC 1307 and [2023] NSWSC 1655

Date of Decision:

03 November 2023

Before:

Cavanagh J

File Number(s):

2021/213328

JUDGMENT

1. THE COURT: This Court handed down its judgment in this appeal on 31 July 2024: Value Constructions Pty Ltd v Badra [2024] NSWCA 181. In substance the appeal was dismissed. The orders made by the primary judge were varied somewhat to take account of this Court’s decision in Synergy Scaffolding Services Pty Ltd v Alelaimat (No 2) [2024] NSWCA 11 (Synergy No 2), which had been handed down subsequently to the final decision of the primary judge. The Court reserved the issue of costs, saying the following:

[77] Finally, in relation to costs, the only ground on which Value has succeeded is ground 4, which involved consensual adjustment of figures. It was MMM which filed the written submissions which led to the outbreak of consensus. The appropriate provision for costs would thus appear to be that Value should pay the costs of all respondents on the appeal. However, little was said in the course of the hearing about costs, although the Court noted that there were various possible outcomes of the appeal. In the circumstances the parties should have the opportunity to address on costs if they cannot agree…