Sydney Water v Asset Geotechnical Engineering & Ors (No 2) [2013] NSWSC 1604

Sydney Water v Asset Geotechnical Engineering & Ors (No 2) [2013] NSWSC 1604

The Court declined to make a Bullock order because the 24 July 2012 letter was insufficient to enliven a special costs discretion, its stated event was unfulfilled, it did not invite a meaningful response or concession, and the third cross-claim was framed generally rather than putting the s 45 claim at the centre....

Source-derived case information.

Jurisdiction
Australia
Judgment Date
17 October 2013
Procedural Posture
Costs Application Seeking a Bullock Order / Notice of Motion After Principal Judgment, Brought Pursuant to Liberty to Apply
Outcome
Asset Geotechnical's notice of motion of 20 September 2013 was dismissed.
Legal Topics
['bullock Order' 'costs Follow the Event' 'apportionable Claims' 'contribution Between Defendants' 'sydney Water Act Statutory Claim']
['costs' 'civil Procedure' 'proportionate Liability'] ['bullock Order' 'costs Follow the Event' 'apportionable Claims' 'contribution Between Defendants' 'sydney Water Act Statutory Claim']

Source-derived case record

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Procedural Posture

Costs Application Seeking a Bullock Order / Notice of Motion After Principal Judgment, Brought Pursuant to Liberty to Apply

Legal Issues

  1. 1 ['Whether Asset Geotechnical should obtain a Bullock order requiring Sydney Water to indemnify it for costs payable to Flexible on the third cross-claim.' "Whether Sydney Water's maintenance and late concession of the s 45 Sydney Water Act 1994 (NSW) claim justified departure from the ordinary rule that costs follow the event." "Whether Asset Geotechnical's 24 July 2012 letter and the form of its third cross-claim supported a special costs order."]

Ratio Decidendi

The Court declined to make a Bullock order because the 24 July 2012 letter was insufficient to enliven a special costs discretion, its stated event was unfulfilled, it did not invite a meaningful response or concession, and the third cross-claim was framed generally rather than putting the s 45 claim at the centre. Viewed objectively from Sydney Water's position, the cross-claim and correspondence did not make the s 45 issue sufficiently clear, and Sydney Water's conduct in maintaining and then conceding the s 45 claim did not justify ordering a successful plaintiff to pay costs payable by the unsuccessful defendant.

Court Disposition

Asset Geotechnical's notice of motion of 20 September 2013 was dismissed.

Orders

  • ["I dismiss Asset's notice of motion of 20 September 2013." "I order Asset Geotechnical to pay Sydney Water's costs of the motion as part of the costs payable under order 7 pronounced on 6 September 2013."]