Boulus Constructions Pty Ltd v Warrumbungle Shire Council (No 3)

Supreme Court

New South Wales

Medium Neutral Citation: Boulus Constructions Pty Ltd v Warrumbungle Shire Council (No 3) [2022] NSWSC 1455
Hearing dates: On the papers; submissions received 14 and 21 October 2022
Date of orders: 25 October 2022
Decision date: 25 October 2022
Jurisdiction: Equity - Technology and Construction List
Before: Stevenson J
Decision:
Cross-claimant’s costs of application to amend its Technology and Construction Cross-Claim Cross-Summons and Cross-Claim List Statement to be cross-claimant’s costs in the Cross-Claim; costs thrown away by the amendment to include any costs of revisiting existing evidence; such costs to be assessable and paid forthwith

Catchwords:
COSTS – where cross-claimant granted leave to amend its Technology and Construction Cross-Claim Cross-Summons and Cross-Claim List Statement – costs thrown away by the amendment – whether such costs should include any costs cross-defendant will incur in revisiting existing evidence – whether cross-defendant should pay costs of amendment application

Legislation Cited:
Design and Building Practitioners Act 2020 (NSW)

Cases Cited:
Boulus Constructions Pty Ltd v Warrumbungle Shire Council (No 2) [2022] NSWSC 1368

Category: Costs
Parties: Boulus Constructions Pty Limited (Plaintiff/Cross-Defendant)
Warrumbungle Shire Council (Defendant/Cross-Claimant)
Representation:
Counsel:
G Campbell (Plaintiff/Cross-Defendant)
D Feller SC with W Marshall (Defendant/Cross-Claimant)
Solicitors:
APJ Law (Plaintiff/Cross-Defendant)
Vincent Young Lawyers (Defendant/Cross-Claimant)

File Number(s): 2018/340246

JUDGMENT

On 12 October 2022, I granted the defendant/cross-claimant, Warrumbungle Shire Council, leave to amend its Technology and Construction Cross-Claim Cross-Summons and Cross-Claim List Statement to add a claim against the plaintiff, Boulus Constructions Pty Limited, and against Mr Brian Boulus and Mr Bradley McCarthy under s 37 of the Design and Building Practitioners Act 2020 (NSW) (“the Act”).^[1]
1. Boulus Constructions Pty Ltd v Warrumbungle Shire Council (No 2) [2022] NSWSC 1368 at [74].
I stated that I would order that the Council pay Boulus Constructions’ costs thrown away by the amendment and invited submissions as to what, if any, further orders I should make as to costs.
I have now received the parties’ submissions on that question.
As I said in my 12 October 2022 judgment,^[2] it is apparent that Boulus Constructions will incur further costs to adduce evidence to meet the Council’s case now being formulated as a breach of duty under s 37 of the Act.
2. At [72].
To the extent that this involves Boulus Constructions revisiting evidence already adduced by it to answer the Council’s claim in contract, and adducing such further evidence as is necessary to meet the new claim for breach of the statutory duty under s 37 of the Act, these costs will be part of Boulus Constructions’ costs thrown away by the amendment. I consider that my order should make this clear.
In that regard, and contrary to the Council’s submissions, I do not see it to be to the point that the s 37 claim is brought not only against Boulus Constructions but also against Mr Boulus and Mr McCarthy, nor that it may be that Mr Boulus or Mr McCarthy will retain the same legal team as is presently acting for Boulus Constructions. Mr Boulus and Mr McCarthy will, of course, have to bear the costs of being joined as parties. But Boulus Constructions, already a party, may have to incur further costs in supplementing evidence already served to meet the reformulation of the Council’s claim against it; and to that extent, should not have to bear those additional costs.
As to the costs of the Council’s application to amend, it is true, as the Council submitted, Boulus Constructions was unsuccessful in resisting the amendment. It is also true, as the Council submitted, that “Boulus Constructions resisted the application principally on legal grounds which were determined adversely to it”. However, I do not agree with the Council’s submission that “[n]one of those legal grounds had any intrinsic merit”. I decided the amendment application adversely to Boulus Constructions, but its submissions were by no means without merit. In particular, as I hope my judgment of 12 October 2022 makes clear, the issue as to what “person” means, when used in s 37 of the Act, was one with some complexity.
Overall, I think that the justice of this case requires that I make orders which make clear the ambit of my order concerning costs thrown away by the amendment, and order that the Council’s costs of the application to amend itself be its costs in the Cross-Claim.
I make the following orders:

that the Council pay Boulus Constructions’ costs thrown away by the amendment granted on 12 October 2022 and that those costs include such costs as Boulus Constructions incurs in supplementing lay or expert evidence already adduced by it in order to meet the claim now made against it under s 37 of the Act;

that Boulus Constructions have leave to have such costs assessed as soon as they are all incurred and to have such costs payable forthwith on assessment; and

that the costs of the Council’s Notice of Motion of 4 August 2022 be the Council’s costs in the Cross-Claim.

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Endnotes

In the case of Boulus Constructions Pty Ltd v Warrumbungle Shire Council (No 3), the dispute before the court involved the issue of costs associated with an amendment made to a Technology and Construction Cross-Claim Cross-Summons and Cross-Claim List Statement. The cross-claimant, Boulus Constructions Pty Ltd, had been granted leave to amend its statement, which resulted in certain costs being thrown away. The court was tasked with determining whether these costs should include any expenses the cross-defendant, Warrumbungle Shire Council, would incur in revisiting existing evidence. Additionally, the court had to decide whether the cross-defendant should be responsible for the costs of the amendment application.

The legal issues before the court centred around the principles governing costs in the context of amendments to pleadings. The court needed to consider the appropriate scope of costs incurred by the cross-defendant due to the amendment, particularly focusing on the necessity for the cross-defendant to revisit evidence that had already been considered in the proceedings. The court also needed to determine the proper allocation of costs for the amendment application itself.

The court examined the relevant case law and statutory provisions to arrive at its decision. It concluded that the costs incurred by the cross-defendant in revisiting existing evidence should be included in the costs associated with the amendment. This was because the amendment necessitated a review of the evidence, which was a direct consequence of the cross-claimant's decision to amend its pleadings. Additionally, the court held that the cross-defendant should bear the costs of the amendment application, as the cross-claimant's decision to amend its statement was a tactical one that led to the need for the application.

In summary, the court determined that the cross-defendant, Warrumbungle Shire Council, should bear the costs associated with revisiting existing evidence due to the amendment made by Boulus Constructions Pty Ltd. Furthermore, the cross-defendant was also ordered to pay the costs of the amendment application. These decisions reflect the court's approach to ensuring that parties bear the costs of their own tactical decisions and the consequences that flow from them.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Boulus Constructions Pty Ltd v Warrumbungle Shire Council (No 3) [2022] NSWSC 1455
Hearing dates:	On the papers; submissions received 14 and 21 October 2022
Date of orders:	25 October 2022
Decision date:	25 October 2022
Jurisdiction:	Equity - Technology and Construction List
Before:	Stevenson J
Decision:	Cross-claimant’s costs of application to amend its Technology and Construction Cross-Claim Cross-Summons and Cross-Claim List Statement to be cross-claimant’s costs in the Cross-Claim; costs thrown away by the amendment to include any costs of revisiting existing evidence; such costs to be assessable and paid forthwith
Catchwords:	COSTS – where cross-claimant granted leave to amend its Technology and Construction Cross-Claim Cross-Summons and Cross-Claim List Statement – costs thrown away by the amendment – whether such costs should include any costs cross-defendant will incur in revisiting existing evidence – whether cross-defendant should pay costs of amendment application
Legislation Cited:	Design and Building Practitioners Act 2020 (NSW)
Cases Cited:	Boulus Constructions Pty Ltd v Warrumbungle Shire Council (No 2) [2022] NSWSC 1368
Category:	Costs
Parties:	Boulus Constructions Pty Limited (Plaintiff/Cross-Defendant) Warrumbungle Shire Council (Defendant/Cross-Claimant)
Representation:	Counsel: G Campbell (Plaintiff/Cross-Defendant) D Feller SC with W Marshall (Defendant/Cross-Claimant) Solicitors: APJ Law (Plaintiff/Cross-Defendant) Vincent Young Lawyers (Defendant/Cross-Claimant)
File Number(s):	2018/340246