Shoveller v Dak-Wal Constructions Pty Ltd (No 4) [2021] NSWSC 509

Supreme Court New South Wales

Medium Neutral Citation: Shoveller v Dak-Wal Constructions Pty Ltd (No 4) [2021] NSWSC 509 Hearing dates: 7-11 September 2020 Decision date: 11 May 2021 Jurisdiction: Common Law Before: Rothman J Decision: (1) Vary Order 1, issued in these proceedings on 8 April 2021, by inserting after the words "seventh defendants", the phrase "in the sum of $3,000,000.00 (the 'judgment sum')". (2) Delete from Orders 3 and 4, issued in these proceedings on 8 April 2021, the words "first defendant/second cross-defendant" in Order 3 and "first cross-defendant" in Order 4 and insert "Dak-Wal Constructions Pty Ltd" and "Akota Construction Pty Ltd" respectively. (3) Insert a new Order in the Orders, issued in these proceedings on 8 April 2021, being Order (3A), in the following terms: "(3A) As a matter of abundant caution, a declaration that, as a result of the orders in these proceedings, the first defendant, Dak-Wal Constructions Pty Ltd, is liable for 100% of the judgment sum." (4) Vacate Orders 8 and 9, issued in these proceedings on 8 April 2021. (5) The first defendant and the third to seventh defendants are to pay the plaintiff's costs on an ordinary basis up to and including 26 August 2020 and thereafter on an indemnity basis. (6) The first defendant is to pay the second defendant's costs in relation to the proceedings between the plaintiff and the second defendant on an ordinary basis up to and including 31 July 2020 and thereafter on an indemnity basis. (7) The first defendant is to pay the second defendant's costs of all Cross-Claims on an ordinary basis up to and including 31 July 2020 and thereafter on an indemnity basis. (8) The first defendant is to indemnify the third to seventh defendants in relation to costs orders referred to in Order 5 above. (9) The first defendant is to pay the costs of the third to seventh defendants/cross­-claimants to the First Cross-Claim and the second, third, fourth, fifth and sixth cross­-defendants to the Second Cross-Claim on an ordinary basis up to and including 10 March 2020 and thereafter on an indemnity basis. (10) Otherwise, proceedings dismissed. Catchwords: COSTS – Calderbank letters – Offers to Contribute – multiple defendants – real compromise – unreasonable not to accept – indemnity costs ordered JUDGMENT and ORDERS – amendment – mistake as to identity of cross-defendant – inconsistent documents – orders not manifesting Court's intention – amendment effected Legislation Cited: Civil Procedure Act 2005 (NSW) s 98 Uniform Civil Procedure Rules 2005 (NSW) rr 36.11(2), 36.16(3A) Cases Cited: Bullock v London General Omnibus Co [1907] 1 KB 264 Commissioner for Fair Trading v Jonval Builders Pty Ltd (No 2) [2020] NSWSC 1308 DJL v The Central Authority (2000) 201 CLR 226; [2000] HCA 17 Shoveller v Dak-Wal Constructions Pty Ltd (No 3) [2021] NSWSC 352 Category: Consequential orders Parties: Alfred Shoveller (Plaintiff) Dak-Wal Constructions Pty Ltd (First Defendant) Akota Construction Pty Ltd (Second Defendant) Joanne Patricia Cunningham (Third Defendant) Merran Rosemary Doyle (Fourth Defendant) Susan Daintrey Virgona (Fifth Defendant) Wilfred James Luscombe (Sixth Defendant) Lucia Louise Luscombe (Seventh Defendant) Representation: Counsel: K Andrews (Plaintiff) D Priestley SC / T Berberian (First Defendant) N Chen SC / D Stretton (Second Defendant) B Hull (Third – Seventh Defendants)