Walton Construction Pty Limited v Illawarra Hotel Company Pty Limited

[2011] NSWSC 594

Supreme Court

New South Wales

Medium Neutral Citation:

Walton Construction Pty Limited v Illawarra Hotel Company Pty Limited [2011] NSWSC 594

Hearing dates:

25 and 26 May, 6 June, 17 June 2011

Decision date:

17 June 2011

Jurisdiction:

Equity Division - Technology and Construction List

Before:

Einstein J

Decision:

1. Costs of the Reference Hearing are reserved;

2. The defendant is to pay the plaintiff's costs of the adoption hearing; and

3.The matter is to be listed before the List Judge on 24 June for directions.

Catchwords:

Costs

Cases Cited:

Oshlack v Richmond River Council (1998) 193 CLR 72

Category:

Costs

Parties:

Walton Construction Pty Ltd (Plaintiff)
Illawarra Hotel Company Limited (Defendant)

Representation:

Malcolm R Gracie, Daniel A Neggo (Plaintiff)
Stuart Donaldson SC, Helen Durham, Danny A Moujalli (Defendant)
Crisp Legal (Plaintiff)
Norbert Lipton & Co (Defendant)

File Number(s):

2008/290556

Judgment

1. The reserved judgment in these proceedings was handed down on 6 June 2011.

1. Order 3 gave the parties an opportunity to address the Court on costs. The Court has received oral and written submissions in that regard.

1. In the particular circumstances, where the instant litigation has not been concluded, and where the parties have indicated that the List Judge will have to be approached to case manage the matters still awaiting litigation, the parties have agreed that it is presently inappropriate for the court to deal with the costs of the reference. Accordingly those costs are reserved.

1. It follows that the Court is now required to determine on a principled basis what is an appropriate order to be made for the costs of the adoption hearing.

1. In Oshlack v Richmond River Council ( 1998) 193 CLR 72, McHughJ at 120 [134] set out the principles which govern the discretion to award costs.

1. The instant circumstances involve the Court having to determine whether or not one or other of the parties so dominated the result in terms of the orders which were made as to entitle that party to have a costs order in its favour.

1. In my view, a careful consideration of the issues which fell for determination, makes clear that the plaintiff effectively succeeded and the defendant effectively failed.

1. A convenient indicator of this is to be ascertained from MFI D1 handed to the Court by Illawarra entitled "Key Findings in Referees Report".

1. The document indicates 18 items of challenge by Illawarra of which it succeeded on only two.

1. In these circumstances, it is appropriate that Illawarra pay the costs of Walton's in respect of the adoption hearing.

Orders

1. The Court makes the following orders:

(1)   Costs of the Reference Hearing are reserved;

(2)   The defendant is to pay the plaintiff's costs of the adoption hearing; and

(3)   The matter is to be listed before the List Judge on 24 June for directions.

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Decision last updated: 20 June 2011