Shaw v Niru Construction Pty Ltd & Anor (No.3) [2021] NSWDC 624

Procedural Posture

Civil Costs Decision / On the Papers After Judgment Following Trial

Legal Issues

1. 1 ['What costs the successful second defendant should recover where he was represented by the same legal team as the unsuccessful first defendant.' "Whether a Sanderson order should be made requiring the first defendant to pay the second defendant's costs." "Whether the plaintiff's costs of the hearing on 29 October 2021 should be excluded from the maximum costs limitation in Schedule 1 of the Legal Profession Uniform Law Application Act 2014 (NSW)."]

Ratio Decidendi

The second defendant's successful issues were discrete and severable from the issues on which his position matched the unsuccessful first defendant, so it would be unfair to apply the common-costs rule of thumb against the plaintiff; the second defendant's recoverable costs were limited to the personal duty of care and breach issues. A Sanderson order was refused because it was not shown that the plaintiff's joinder of the second defendant was affected by the first defendant's conduct. The Schedule 1 exclusion was refused because, although the adjournment application delayed the claim, it was not shown to have been intended to delay the proceeding or reasonably likely to unnecessarily...

Court Disposition

The plaintiff obtained a costs order against the defendants subject to a limited costs order in favour of the second defendant; the Sanderson order and statutory costs cap exemption were refused.

Orders

• ["Subject to order 2, the defendants pay the plaintiff's costs as agreed or assessed." "The plaintiff is to pay the second defendant's costs on the issue of whether the second defendant owed the plaintiff a personal duty of care and whether such personal duty was breached, as agreed or assessed."]