TP Projects Pty Limited v Lamio Masonry Services Pty Limited [2015] NSWDC 163

TP Projects Pty Limited v Lamio Masonry Services Pty Limited [2015] NSWDC 163

Leave to discontinue was appropriate because the DOCA and s 444E of the Corporations Act 2001 prevented the plaintiff from maintaining the proceedings. Although ordinary costs principles entitled the defendant to its costs up to the time discontinuance ought to have occurred, the defendant acted unreasonably in not accepting the plaintiff's renewed offer by 5pm on 14 November 2014, because acceptance would have obviated further proceedings and costs. The defendant was therefore entitled to costs only up to 5pm on 14 November 2014, and the plaintiff was entitled to costs from Monday, 17 November 2014, including the motion. There was no basis to set aside Robison DCJ's costs order on the...

Jurisdiction
Australia
Judgment Date
08 May 2015
Procedural Posture
Civil Costs and Discontinuance Application / Notice of Motion for Leave to Discontinue Proceedings, Costs Orders, Setting Aside Previous Costs and Security for Costs Orders, and Return of Security for Costs
Outcome
Leave to discontinue granted; costs apportioned by date; application to set aside Robison DCJ's costs order refused; security for costs ordered to be returned to the plaintiff.
Legal Topics
['discontinuance of Proceedings' 'costs Following the Event' 'reasonableness of Rejecting Settlement Offers' 'security for Costs' 'adjudication Certificates Under Security of Payment Legislation' 'deed of Company Arrangement']
['civil Procedure' 'costs' 'building and Construction' 'corporations and Insolvency'] ['discontinuance of Proceedings' 'costs Following the Event' 'reasonableness of Rejecting Settlement Offers' 'security for Costs' 'adjudication Certificates Under Security of Payment Legislation' 'deed of Company Arrangement']

Case Brief

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Procedural Posture

Civil Costs and Discontinuance Application / Notice of Motion for Leave to Discontinue Proceedings, Costs Orders, Setting Aside Previous Costs and Security for Costs Orders, and Return of Security for Costs

Legal Issues

  1. 1 ["Whether the plaintiff should be granted leave to discontinue the proceedings because the defendant's deed of company arrangement made the proceedings not maintainable." "Whether the defendant acted unreasonably by refusing to accept the plaintiff's settlement offers made after adjudication certificates and Local Court judgments were obtained." 'Whether costs should follow the event on discontinuance, and from what date any different costs order should operate.' 'Whether the costs order made by Robison DCJ on 19 December 2014 should be set aside.' "Whether money paid into Court as security for the defendant's costs should be returned to the plaintiff."]

Ratio Decidendi

Leave to discontinue was appropriate because the DOCA and s 444E of the Corporations Act 2001 prevented the plaintiff from maintaining the proceedings. Although ordinary costs principles entitled the defendant to its costs up to the time discontinuance ought to have occurred, the defendant acted unreasonably in not accepting the plaintiff's renewed offer by 5pm on 14 November 2014, because acceptance would have obviated further proceedings and costs. The defendant was therefore entitled to costs only up to 5pm on 14 November 2014, and the plaintiff was entitled to costs from Monday, 17 November 2014, including the motion. There was no basis to set aside Robison DCJ's costs order on the...

Court Disposition

Leave to discontinue granted; costs apportioned by date; application to set aside Robison DCJ's costs order refused; security for costs ordered to be returned to the plaintiff.

Orders

  • ['Leave granted to the plaintiff to discontinue proceedings pursuant to Civil Procedure Act 2005 s 14, with the requirements of UCPR Pt 12 for filing a notice of discontinuance dispensed with.' "Plaintiff to pay the defendant's costs up to 5pm on Friday, 14 November 2014." "Defendant to pay the plaintiff's costs on...