Invictus Development Group Pty Ltd v Versatile Fitout Pty Ltd (No.2) [2022] NSWDC 521

Invictus Development Group Pty Ltd v Versatile Fitout Pty Ltd (No.2) [2022] NSWDC 521

Versatile's damages claim for defective work was closely connected to Invictus' debt claim, so a single judgment after set-off under s 90(2) was appropriate. Invictus was nevertheless entitled to credit for pre-judgment interest on its debt claim, producing judgment for Versatile of $34,632.95 plus pre-judgment interest. Versatile was successful overall, but because it succeeded only on a single late-amended defect while broader defect and termination claims were abandoned or failed, it would be unfair for Invictus to bear all Versatile's costs; Invictus was ordered to pay 33% of Versatile's costs on the ordinary basis. Versatile's Calderbank offer did not justify indemnity costs because...

Jurisdiction
Australia
Judgment Date
31 October 2022
Procedural Posture
Civil Building Dispute; Dispositive Orders and Costs / On the Papers After Publication of Earlier Reasons
Outcome
Judgment for the defendant/cross-claimant for $34,632.95 plus pre-judgment interest; security orders made; plaintiff/cross-defendant to pay 33% of defendant/cross-claimant's costs on the ordinary basis; partial indemnity costs refused.
Legal Topics
['set Off of Judgments' 'security for Costs' 'ordinary Costs' 'indemnity Costs' 'calderbank Offers' 'late Amendment' 'disentitling Conduct']
['civil Procedure' 'costs' 'building and Construction' 'contract'] ['set Off of Judgments' 'security for Costs' 'ordinary Costs' 'indemnity Costs' 'calderbank Offers' 'late Amendment' 'disentitling Conduct']

Case Brief

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Procedural Posture

Civil Building Dispute; Dispositive Orders and Costs / On the Papers After Publication of Earlier Reasons

Legal Issues

  1. 1 ["Whether the parties' respective monetary successes should result in two judgments or a single judgment after set-off." 'Whether security paid into Court by Versatile should be released and whether security paid by Invictus should remain in place.' 'Whether Versatile, as the party successful overall, should receive its costs or be deprived of costs because of disentitling conduct.' 'Whether Versatile should receive partial indemnity costs by reason of its Calderbank offer dated 7 September 2022.' "Whether r 42.35 of the Uniform Civil Procedure Rules 2005 (NSW) affected Versatile's entitlement to costs where the judgment sum after set-off was below $40,000."]

Ratio Decidendi

Versatile's damages claim for defective work was closely connected to Invictus' debt claim, so a single judgment after set-off under s 90(2) was appropriate. Invictus was nevertheless entitled to credit for pre-judgment interest on its debt claim, producing judgment for Versatile of $34,632.95 plus pre-judgment interest. Versatile was successful overall, but because it succeeded only on a single late-amended defect while broader defect and termination claims were abandoned or failed, it would be unfair for Invictus to bear all Versatile's costs; Invictus was ordered to pay 33% of Versatile's costs on the ordinary basis. Versatile's Calderbank offer did not justify indemnity costs because...

Court Disposition

Judgment for the defendant/cross-claimant for $34,632.95 plus pre-judgment interest; security orders made; plaintiff/cross-defendant to pay 33% of defendant/cross-claimant's costs on the ordinary basis; partial indemnity costs refused.

Orders

  • ['Judgment for the defendant/cross-claimant for the sum of $34,632.95.' 'The plaintiff is to also pay the defendant/cross-claimant pre-judgment interest on the above sum.' "The sum of $50,000 paid into Court by the cross-claimant as security for the cross-defendant's costs (pursuant to an order of the Court made on...