The Owners – Strata Plan 30791 v Southern Cross Constructions (ACT) Pty Ltd (in liq) (No 3) [2019] NSWSC 560

The Owners – Strata Plan 30791 v Southern Cross Constructions (ACT) Pty Ltd (in liq) (No 3) [2019] NSWSC 560

The plaintiffs' claims having been dismissed, the first, third and sixth defendants are entitled to costs. Costs of the reference are costs in the cause and payable by plaintiffs. Southern Cross is entitled to indemnity costs from 1 August 2018, following an unreasonably rejected offer of compromise. Hughes Trueman's claim for indemnity costs is refused because the offer was a late 'walk-away' offer and the claim against it was not frivolous or vexatious. Both Southern Cross and Hughes Trueman are entitled to interest on their costs.

Parties
First Plaintiff: The Owners – Strata Plan 30791; Second Plaintiff: Albert Bonansea and Ivana Bonansea; Third Plaintiff: Angus John Nicholas Brooks; Fourth Plaintiff: Julius Wolfgang; Fifth Plaintiff: Roslyn Bainton; Sixth Plaintiff: Michelle Anne Carruthers; Seventh Plaintiff: Alison Pate; Eighth Plaintiff: Vanessa Winley; First Defendant: Southern Cross Constructions (ACT) Pty Limited (in liquidation); Second Defendant: Pile & Bucket Pty Limited; Third Defendant: Allianz Australia Insurance Limited; Fourth Defendant: Northwood Pty Limited; Fifth Defendant: Jeffery and Katauskas Pty Limited; Sixth Defendant: Hughes Trueman Pty Limited; Seventh Defendant: NMK (Aust) Pty Limited; Eighth Defendant: QBE Underwriting Limited as Managing Agent for the Members of Lloyd's Syndicate 386
Jurisdiction
Australia
Judgment Date
16 May 2019
Procedural Posture
Costs Application Following Judgment in Equity (technology and Construction List) Proceeding / Post Judgment Costs and Ancillary Orders
Outcome
Judgment for the first, third, and sixth defendants against the plaintiffs. Plaintiffs to pay costs as specified.
Legal Topics
Costs Follow the Event, Indemnity Costs, Offers of Compromise, Interest on Costs, Party/party Costs, Reference to Referee
Civil Procedure Costs Costs Follow the Event Indemnity Costs Offers of Compromise Interest on Costs Party/party Costs Reference to Referee

Case Brief

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Parties

The Owners – Strata Plan 30791

First Plaintiff

Albert Bonansea and Ivana Bonansea

Second Plaintiff

Angus John Nicholas Brooks

Third Plaintiff

Julius Wolfgang

Fourth Plaintiff

Roslyn Bainton

Fifth Plaintiff

Michelle Anne Carruthers

Sixth Plaintiff

Alison Pate

Seventh Plaintiff

Vanessa Winley

Eighth Plaintiff

Southern Cross Constructions (ACT) Pty Limited (in liquidation)

First Defendant

Pile & Bucket Pty Limited

Second Defendant

Allianz Australia Insurance Limited

Third Defendant

Northwood Pty Limited

Fourth Defendant

Jeffery and Katauskas Pty Limited

Fifth Defendant

Hughes Trueman Pty Limited

Sixth Defendant

NMK (Aust) Pty Limited

Seventh Defendant

QBE Underwriting Limited as Managing Agent for the Members of Lloyd's Syndicate 386

Eighth Defendant

Procedural Posture

Costs Application Following Judgment in Equity (technology and Construction List) Proceeding / Post Judgment Costs and Ancillary Orders

Legal Issues

  1. 1 Appropriate costs orders following dismissal of plaintiffs' claims
  2. 2 Whether successful defendants should be awarded indemnity costs due to offers of compromise
  3. 3 Whether costs of reference should be included in defendants' costs

Ratio Decidendi

The plaintiffs' claims having been dismissed, the first, third and sixth defendants are entitled to costs. Costs of the reference are costs in the cause and payable by plaintiffs. Southern Cross is entitled to indemnity costs from 1 August 2018, following an unreasonably rejected offer of compromise. Hughes Trueman's claim for indemnity costs is refused because the offer was a late 'walk-away' offer and the claim against it was not frivolous or vexatious. Both Southern Cross and Hughes Trueman are entitled to interest on their costs.

Court Disposition

Judgment for the first, third, and sixth defendants against the plaintiffs. Plaintiffs to pay costs as specified.

Orders

  • Plaintiffs must pay the first and third defendants' costs on the ordinary basis up to and including 31 July 2018, and on the indemnity basis from 1 August 2018, except for the costs of the notice of motion regarding adoption of the referee's report.
  • Plaintiffs to pay interest to the first and third defendants on those costs at rates set out in UCPR r 36.7, calculated on the Allowed Percentage of amounts actually paid, from the date of such payment until payment by plaintiffs.