EKO Investments Pty Limited v Austruc Constructions Limited & Ors; The Owners Strata Plan No. 64970 v Austruc Constructions Limited & Ors (Costs) [2009] NSWSC 371

EKO Investments Pty Limited v Austruc Constructions Limited & Ors; The Owners Strata Plan No. 64970 v Austruc Constructions Limited & Ors (Costs) [2009] NSWSC 371

In the context of complex, concurrent multi-party proceedings, and given EKO’s entitlement to commence its claim and uncertainty about its own liability, EKO is entitled to recover its costs up to a reasonable date following the commencement of the Corporation’s proceedings, but must pay the costs thrown away by reason of its failure on the broader rectification claim. The ordinary rule of costs following the event does not always apply to nominal damages in complex cases; specific facts justify partial costs orders.

Jurisdiction
Australia
Judgment Date
12 May 2009
Procedural Posture
Costs Applications in Concurrent Proceedings / Post Judgment, Costs Orders
Outcome
Various costs orders; costs for EKO proceedings finalized; Corporation’s proceedings costs deferred.
Legal Topics
['costs' 'nominal Damages' 'multi Party Proceedings' 'rectification Claims']
['civil Procedure' 'construction Law'] ['costs' 'nominal Damages' 'multi Party Proceedings' 'rectification Claims']

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Procedural Posture

Costs Applications in Concurrent Proceedings / Post Judgment, Costs Orders

Legal Issues

  1. 1 ['Whether the plaintiff recovering only nominal damages is entitled to costs' 'Appropriate allocation of costs in complex, concurrent multi-party proceedings' 'Entitlement to costs for cross-claims and broader rectification claims']

Ratio Decidendi

In the context of complex, concurrent multi-party proceedings, and given EKO’s entitlement to commence its claim and uncertainty about its own liability, EKO is entitled to recover its costs up to a reasonable date following the commencement of the Corporation’s proceedings, but must pay the costs thrown away by reason of its failure on the broader rectification claim. The ordinary rule of costs following the event does not always apply to nominal damages in complex cases; specific facts justify partial costs orders.

Court Disposition

Various costs orders; costs for EKO proceedings finalized; Corporation’s proceedings costs deferred.

Orders

  • ["Austruc to pay EKO's costs of proceedings against it up to and including December 2005." "CSA to pay EKO's costs of proceedings against it up to and including December 2005." "EKO to pay Austruc's and CSA's costs thrown away for the failure of the broader rectification claim." "Austruc and CSA to pay Traditional's...