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 1. 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] 2. 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. 3. I have now received the parties' submissions on that question. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. I make the following orders: 1. 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; 2. 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 3. that the costs of the Council's Notice of Motion of 4 August 2022 be the Council's costs in the Cross-Claim. ********** Endnotes 1. Boulus Constructions Pty Ltd v Warrumbungle Shire Council (No 2) [2022] NSWSC 1368 at [74]. 2. At [72]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 October 2022