Illawarra Retirement Trust v Denham Constructions Pty Ltd (No.2) [2015] NSWSC 1032

Illawarra Retirement Trust v Denham Constructions Pty Ltd (No.2) [2015] NSWSC 1032

Although the plaintiff's Summons was dismissed, the proceedings were justified by the defendant's pursuit for a time of two largely overlapping payment claims that raised serious questions of abuse of process, and the defendant later withdrew Progress Claim No. 25 and varied or did not press parts of Progress Claim No. 26. The defendant was ultimately successful on the remaining issues, but both parties achieved a roughly equivalent degree of success. In those circumstances, and with no conduct warranting indemnity costs, the appropriate order was that each party bear its own costs of the proceedings.

Jurisdiction
Australia
Judgment Date
28 July 2015
Procedural Posture
Costs Application in Technology and Construction List Proceedings Concerning Payment Claims Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Costs Determined on the Papers After the Plaintiff's Summons Was Dismissed and Costs Were Reserved
Outcome
Each party to bear its own costs of the proceedings.
Legal Topics
['costs Discretion' 'costs Following the Event' 'indemnity Costs' 'payment Claims' 'abuse of Process' 'security of Payment']
['civil Procedure' 'costs' 'building and Construction'] ['costs Discretion' 'costs Following the Event' 'indemnity Costs' 'payment Claims' 'abuse of Process' 'security of Payment']

Case Brief

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Procedural Posture

Costs Application in Technology and Construction List Proceedings Concerning Payment Claims Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Costs Determined on the Papers After the Plaintiff's Summons Was Dismissed and Costs Were Reserved

Legal Issues

  1. 1 ["Whether the plaintiff or the defendant should be treated as the successful party for costs purposes after the plaintiff's Summons was dismissed but the defendant had withdrawn or modified payment claims after proceedings commenced." 'Whether each party should bear its own costs or whether costs should be ordered on a temporal basis.' "Whether the defendant's conduct warranted an indemnity costs order in favour of the plaintiff up to 18 June 2015." "Whether the defendant's offer to settle the proceedings with no order as to costs affected the costs order."]

Ratio Decidendi

Although the plaintiff's Summons was dismissed, the proceedings were justified by the defendant's pursuit for a time of two largely overlapping payment claims that raised serious questions of abuse of process, and the defendant later withdrew Progress Claim No. 25 and varied or did not press parts of Progress Claim No. 26. The defendant was ultimately successful on the remaining issues, but both parties achieved a roughly equivalent degree of success. In those circumstances, and with no conduct warranting indemnity costs, the appropriate order was that each party bear its own costs of the proceedings.

Court Disposition

Each party to bear its own costs of the proceedings.

Orders

  • ['Each party bear its own costs of the proceedings, including this application for costs.']