Piety Constructions Pty Ltd v Megacrane Holdings Pty Ltd (Administrator Appointed) (No 3) [2023] NSWSC 985

Piety Constructions Pty Ltd v Megacrane Holdings Pty Ltd (Administrator Appointed) (No 3) [2023] NSWSC 985

Megacrane was wholly successful on the substantive validity issue and obtained orders no less favourable than its 29 November 2022 offer of compromise, so Piety was to pay Megacrane's costs, with indemnity costs after that offer, subject to the Court's discretion. Because the Administrator's personal liability undertaking was first proffered during the 29 May 2023 hearing and gave Piety a better outcome than Megacrane had previously offered, there should be no order as to the costs of that hearing. A stay of the costs order was refused because there was no relevant connection between Megacrane's recovery of costs in these proceedings and Piety's proof of debt for its cross-claim, and...

Jurisdiction
Australia
Judgment Date
18 August 2023
Procedural Posture
Costs Determination Following Proceedings Concerning an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Residual Issues of Costs and Stay of Costs Order Determined on the Papers
Outcome
The plaintiff was ordered to pay the first defendant's costs on the ordinary basis until 29 November 2022 and thereafter on the indemnity basis, except that there was no order as to the costs of the hearing on 29 May 2023. The plaintiff's application for a stay of the costs order was refused.
Legal Topics
['indemnity Costs After Offer of Compromise' 'calderbank Offer' 'stay of Costs Order' 'brodyn/grosvenor Stay' 'proof of Debt and Set Off in Winding Up']
['civil Procedure' 'costs' 'building and Construction' 'corporations'] ['indemnity Costs After Offer of Compromise' 'calderbank Offer' 'stay of Costs Order' 'brodyn/grosvenor Stay' 'proof of Debt and Set Off in Winding Up']

Case Brief

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Procedural Posture

Costs Determination Following Proceedings Concerning an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Residual Issues of Costs and Stay of Costs Order Determined on the Papers

Legal Issues

  1. 1 ["What order should be made as to the costs of the proceedings, including whether costs should be assessed on the indemnity basis after Megacrane's offers of compromise." 'Whether there should be no order as to costs for the hearing on 29 May 2023.' 'Whether any costs order against Piety should be stayed pending the outcome of an appeal from the adjudication of a proof of debt to be lodged by Piety for its cross-claim.']

Ratio Decidendi

Megacrane was wholly successful on the substantive validity issue and obtained orders no less favourable than its 29 November 2022 offer of compromise, so Piety was to pay Megacrane's costs, with indemnity costs after that offer, subject to the Court's discretion. Because the Administrator's personal liability undertaking was first proffered during the 29 May 2023 hearing and gave Piety a better outcome than Megacrane had previously offered, there should be no order as to the costs of that hearing. A stay of the costs order was refused because there was no relevant connection between Megacrane's recovery of costs in these proceedings and Piety's proof of debt for its cross-claim, and...

Court Disposition

The plaintiff was ordered to pay the first defendant's costs on the ordinary basis until 29 November 2022 and thereafter on the indemnity basis, except that there was no order as to the costs of the hearing on 29 May 2023. The plaintiff's application for a stay of the costs order was refused.

Orders

  • ["Subject to order 2, the plaintiff is to pay the first defendant's costs of the proceedings to be assessed until 29 November 2022 on the ordinary basis, and thereafter on the indemnity basis." 'There be no order as to the costs of and incidental to the hearing on 29 May 2023, with the intention that each party pay...