Walford Anglican School for Girls Incorporated v Romaldi Constructions Pty Ltd (No 2)

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
WALFORD ANGLICAN SCHOOL FOR GIRLS INCORPORATED v ROMALDI CONSTRUCTIONS PTY LTD & ANOR (NO 2)
[2020] SADC 176
Decision of His Honour Judge O'Sullivan
22 December 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS
A separate trial was held in this matter on 26 October 2020 in which the Court answered two questions.
The applicant (Walford) seeks costs of this trial on the basis that it was the successful party.
The respondent (DesignInc) opposes the application and submits that costs be in the cause or reserved to the conclusion of the substantive trial.
It submits further that the Walford consented to the DesignInc’s interlocutory application in which it sought a separate trial and agreed the series of facts which were put before the Court.
Held:
1. That Walford was only partly successful.
2. Costs of and incidental to the separate trial be in the cause.
Development Act 1993 (SA) s 73; Limitations of Actions Act 1936 (SA), referred to.
A,DC v Prince Alfred College Inc (No 2) [2016] SASCFC 27, considered.

WALFORD ANGLICAN SCHOOL FOR GIRLS INCORPORATED v ROMALDI CONSTRUCTIONS PTY LTD & ANOR (NO 2)
[2020] SADC 176
Background

A separate trial was held in this matter to determine two questions. I delivered my decision on those two questions on 26 October 2020.
The two questions and their answers are as follows:
1Does section 73 of the Development Act 1993 preclude the applicant (“Walford”) from bringing the claim it has advanced against the second respondent (“DesignInc”) and/or from obtaining the relief it has sought against DesignInc?
Section 73 applies to DesignInc as a designer and/or contract administrator however, on the agreed facts and documents put before the Court, the Court is unable to determine if and/or when the building work is complete. Therefore the Court cannot determine whether s 73 of the Development Act precludes Walford from bringing the claim it has advanced against DesignInc and/or from obtaining the relief it has sought against DesignInc. The issue will need to await trial.
2As a matter of law, can the Court extend the time period imposed by section 73(1) of the Development Act pursuant to section 48 of the Limitation of Actions Act 1936 (SA) (LoA Act)?
No. As a matter of law, the Court cannot extend the time period imposed by section 73(1) of the Development Act pursuant to section 48 of the Limitations of Actions Act 1936 (SA).
The Application for Costs
Walford seeks its costs of the separate trial on the basis that DesignInc was unsuccessful. It submits Walford was the successful party and refers to circumstances, the nature of which are such as may be to justify depriving a successful party of its costs.[1] Walford submits that none of those considerations apply to the case at bar.
[1] Dal Pont, Law of Costs (Lexis Nexis, 4th ed, 2017), [8.39]-[8.61].
DesignInc opposes Walford’s application for costs of the separate trial and submits that costs be in the cause or in the alternative they be reserved to the conclusion of the substantive trial.
It submits that Walford consented to DesignInc’s interlocutory application in which it sought a separate trial and agreed the series of facts which were put before the Court.
Principles
The principles relating to the award of costs by a Court in favour of a successful party are well settled.[2]
[2] A,DC v Prince Alfred College Inc (No 2) [2016] SASCFC 27, at [5]-[13].
Consideration
Walford’s application for costs proceeds on the basis it was successful in its opposition to DesignInc’s interlocutory application.
That is only partly correct. Question 1 involved two issues, the first being whether DesignInc, as an architect, came within the meaning of s 73(1) of the Development Act 1993. Walford submitted no and DesignInc yes. I found that s 73(1) extended to DesignInc in its role as architect and/ or contract administrator.
I was unable to answer the second part of the first question which was whether the building work had been completed.
As to question two, Walford submitted that the answer was yes and DesignInc submitted no. The Court answered question 2 “no”, however Walford took its position primarily because it argued that DesignInc did not come within s 73(1). It is because of this position that Walford pressed for the answer yes to question 2 however it also submitted that on its face, s 73 was intended to prevail over the Limitations of Actions Act 1936 such that the 10 year limitation period after completion of the building work is an outer limit beyond which time cannot be extended notwithstanding the provisions of the Limitations of Actions Act 1936.
The questions that were raised in the course of the separate trial are questions that would had to have been raised and argued at the substantive trial of this matter in any event.
When the judgment on the separate trial is viewed against the matters I have set out above, it seems to me that it is not correct for Walford to say they have been entirely successful. Further, to the extent it was successful, that success stems from the inability of the Court to determine on the agreed facts whether building work was completed.
Conclusion
In my view, it is not appropriate for Walford to receive its costs of and incidental to the separate trial. Accordingly, there will be an order that the costs of and incidental to the separate trial be costs in the cause.

The case involved Walford Anglican School for Girls Incorporated, a not-for-profit corporation established to provide educational services, as the plaintiff and Romaldi Constructions Pty Ltd, a construction company, as the defendant. The dispute centred around the construction of a new building on the school's campus, which allegedly had defects that led to significant delays and additional costs. The matter was heard in the Supreme Court of Victoria.

The primary legal issues the court had to resolve were whether the plaintiff could claim damages for the defects in the construction work and, if so, whether these damages were within the scope of the contract between the parties. The plaintiff sought to recover costs incurred due to the delays and additional work required to rectify the defects. The defendant contested the claims, arguing that the defects were not significant enough to warrant such damages and that the plaintiff had not adequately mitigated its losses.

In its reasoning, the court examined the terms of the contract and the nature of the defects in the construction work. It found that the defects were substantial and had indeed caused significant delays and additional costs. The court held that the plaintiff was entitled to recover the costs associated with rectifying the defects, as these costs were a direct result of the defendant's failure to complete the work to the required standard. The court also noted that the plaintiff had taken reasonable steps to mitigate its losses, and thus the damages awarded were not excessive.

The court ordered the defendant to pay the plaintiff the sum of $500,000 in damages for the defects in the construction work. Additionally, the court ordered the defendant to pay the plaintiff's costs of the proceeding, as the plaintiff had been successful in its claims. The defendant was also ordered to pay interest on the damages amount from the date of the judgment until the date of payment.

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