Robust Builders Pty Ltd v Barai & Anor (No.8) [2023] NSWDC 482

Robust Builders Pty Ltd v Barai & Anor (No.8) [2023] NSWDC 482

Indemnity costs are only warranted for unreasonable conduct, especially where it causes the other party to incur additional costs. While some of the builder's pre-hearing conduct was unreasonable, the appropriate occasion for indemnity costs orders was at the time of non-compliance, not retrospectively at the end of the proceeding. However, during the hearing, Mr Mehndiratta's serial interlocutory applications and associated behaviour did cause unreasonable delay and expense, justifying an indemnity costs order for 25% of the hearing. As Mr Mehndiratta was the real party in control, stood to benefit, and the company was insolvent, a personal costs order against him was appropriate for...

Jurisdiction
Australia
Judgment Date
10 November 2023
Procedural Posture
Civil / Post Trial; Costs Application After Judgment and Post Judgment Motions
Outcome
Orders granted in part: indemnity costs for part of hearing, personal costs order against Mr Mehndiratta, remainder of costs on ordinary basis, refusal of stay of execution.
Legal Topics
['indemnity Costs' 'personal Costs Orders Against Director' 'stay of Execution Pending Appeal' 'case Management and Timeliness in Costs Applications']
['civil Procedure' 'costs'] ['indemnity Costs' 'personal Costs Orders Against Director' 'stay of Execution Pending Appeal' 'case Management and Timeliness in Costs Applications']

Case Brief

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Procedural Posture

Civil / Post Trial; Costs Application After Judgment and Post Judgment Motions

Legal Issues

  1. 1 ['Should an indemnity costs order be made against the plaintiff/builder and/or its director?' 'Should a personal costs order be made against Mr Ravi Mehndiratta as director of the plaintiff/builder?' 'Should execution/enforcement of judgment and costs be stayed pending appeal?']

Ratio Decidendi

Indemnity costs are only warranted for unreasonable conduct, especially where it causes the other party to incur additional costs. While some of the builder's pre-hearing conduct was unreasonable, the appropriate occasion for indemnity costs orders was at the time of non-compliance, not retrospectively at the end of the proceeding. However, during the hearing, Mr Mehndiratta's serial interlocutory applications and associated behaviour did cause unreasonable delay and expense, justifying an indemnity costs order for 25% of the hearing. As Mr Mehndiratta was the real party in control, stood to benefit, and the company was insolvent, a personal costs order against him was appropriate for...

Court Disposition

Orders granted in part: indemnity costs for part of hearing, personal costs order against Mr Mehndiratta, remainder of costs on ordinary basis, refusal of stay of execution.

Orders

  • ["Order 5 of 15 September 2023 varied: 25% of the defendants/cross-claimants' costs of the hearing (22 August 2023 to 7 September 2023) payable on an indemnity basis and by Mr Ravi Mehndiratta; balance of costs payable on ordinary basis by the plaintiff/cross-defendant." "Plaintiff/cross-defendant to pay 50% of the...