The Owners Strata Plan No. 64970 v Austruc Constructions Limited & Anor (No. 5) [2010] NSWSC 568

The Owners Strata Plan No. 64970 v Austruc Constructions Limited & Anor (No. 5) [2010] NSWSC 568

The judgment apportioned the costs for scaffolding and associated remedial works on a pro rata basis, increasing CSA's share above the strict mathematical calculation to reflect duration and fairness. Judgment was entered on the cross-claims to finalise the proceedings, departing from the practice of entering only a verdict, due to the case's lengthy history and liquidation of a party. Costs were apportioned on the basis of the success and failure of different claims and defences, with the plaintiff to pay 50% of CSA's costs of proceedings before the Referee and, for court proceedings, each party to pay their own costs.

Parties
Plaintiff: The Owners Strata Plan No. 64970; First Defendant: Austruc Constructions Limited (in liquidation); Second Defendant: Cyril Smith & Associates Pty Ltd (CSA); Third Cross Defendant to First and Second Cross Claims: Slater Lomas Pty Ltd
Jurisdiction
Australia
Judgment Date
31 May 2010
Procedural Posture
Civil / Final Judgment; Apportionment of Liability and Costs
Outcome
Judgment entered for the plaintiff against CSA in the sum of $170,804.18; judgment on cross-claims; costs orders made.
Legal Topics
Contribution Claims, Negligence, Design Liability, Costs Apportionment
Construction Law Torts Civil Procedure Contribution Claims Negligence Design Liability Costs Apportionment

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Parties

The Owners Strata Plan No. 64970

Plaintiff

Austruc Constructions Limited (in liquidation)

First Defendant

Cyril Smith & Associates Pty Ltd (CSA)

Second Defendant

Slater Lomas Pty Ltd

Third Cross Defendant to First and Second Cross Claims

Procedural Posture

Civil / Final Judgment; Apportionment of Liability and Costs

Legal Issues

  1. 1 Quantum and apportionment for remedial work (scaffolding, windows)
  2. 2 Whether judgment or verdict should be entered on cross-claims for contribution
  3. 3 Apportionment of costs between plaintiff and CSA

Ratio Decidendi

The judgment apportioned the costs for scaffolding and associated remedial works on a pro rata basis, increasing CSA's share above the strict mathematical calculation to reflect duration and fairness. Judgment was entered on the cross-claims to finalise the proceedings, departing from the practice of entering only a verdict, due to the case's lengthy history and liquidation of a party. Costs were apportioned on the basis of the success and failure of different claims and defences, with the plaintiff to pay 50% of CSA's costs of proceedings before the Referee and, for court proceedings, each party to pay their own costs.

Court Disposition

Judgment entered for the plaintiff against CSA in the sum of $170,804.18; judgment on cross-claims; costs orders made.

Orders

  • Judgment for plaintiff against CSA in the amount of $170,804.18
  • Judgment entered on cross-claims