District Court New South Wales Medium Neutral Citation: Robust Builders Pty Ltd v Barai & Anor (No.7) [2023] NSWDC 404 Hearing dates: On the papers Date of orders: 03 October 2023 Decision date: 03 October 2023 Jurisdiction: Civil Before: Abadee DCJ Decision: Paragraph 25 Catchwords: JUDGMENTS AND ORDERS – building case – proceeding carried on for the plaintiff by its director – director's application to 'waive' costs order imposed against plaintiff COSTS – whether ultimate costs order should be modified to reflect successful party's non-compliance with directions given during a proceeding CIVIL PROCEDURE - observations on obligation of party to make any application for costs occasioned by reason of its adversary's non-compliance with court directions at a time proximate to the non-compliance rather than at conclusion of proceeding Legislation Cited: Civil Procedure Act 2005 (NSW), ss 96, 98 Uniform Civil Procedure Rules 2005 (NSW), rr 36.13, 42.1 Cases Cited: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 Northern Territory v Sangare (2019) 372 ALR 117 Oshlack v Richmond River Council (1998) 193 CLR 72 Robust Builders Pty Ltd v Barai [2023] NSWDC 371 Robust Builders Pty Ltd v Barai (No.2) [2023] NSWDC 372 Robust Builders Pty Ltd v Barai (No.3) [2023] NSWDC 373 Robust Builders Pty Ltd v Barai (No.4) [2023] NSWDC 374 Robust Builders Pty Ltd v Barai (No.5) [2023] NSWDC 375 Robust Builders Pty Ltd v Barai & Anor (No.6) [2023] NSWDC 376 Texts Cited: Nil Category: Costs Parties: Robust Builders Pty Ltd (plaintiff/cross-defendant) Mr P Barai (defendant/cross-claimant 1) Mrs F Mahjabeen (defendant/cross-claimant 2) Representation: Mr D Lambley (solicitor) for the defendants/cross-claimant Mr R Mehndiratta (as director of and for the plaintiff/cross-defendant) File Number(s): 2018/00259451 Publication restriction: Nil REASONS FOR JUDGMENT 1. This proceeding involved a claim by a builder for unpaid invoices. That claim was defended by the owners, who brought their own cross-claim for damages for defective and incomplete works in breach of statutory warranties. The events giving rise to the litigation occurred between the second half of 2016 and August 2018. The hearing commenced in the August 2023 civil list hearings in Parramatta.. 2. On 15 September 2023 I delivered reasons for judgment after a 12 day hearing. Those reasons were published on Caselaw (Robust Builders Pty Ltd v Barai & Anor (No.6) [2023] NSWDC 376). 3. The result of the litigation, in summary, was that the builder succeeded in respect to some of its claim for unpaid fees but the owners were also successful in establishing their claim of incomplete and defective works; and, further, by operation of set-off (under s 96 of the Civil Procedure Act 2005 (NSW)), the builder's claim was effectively extinguished; leaving the owners with a (reduced) monetary judgment against the builder (order 3) plus an order for payment of interest (order 4). By order 5, I ordered that the plaintiff pay the cross-claimants costs of the proceeding. 4. Within the period of 14 days allowed by Court rules for applications for variations or the discharging of court orders (r 36.13(3A) of the Uniform Civil Procedure Rules 2005 (NSW)) and in conformity with order 6, the director of the plaintiff, Mr Mehndiratta, who had carried on the proceeding for the plaintiff for most (but not all) of the proceeding (that is, until November 2020), sent to my Associate a Notice of Motion and what purported to be a supporting affidavit on or about 27 September 2023. 5. The forms that were actually supplied were irregular in form. The notice of motion contained argument and submissions. Mr Mehndiratta's affidavit omitted any evidence and bore only formal details. 6. Be that as it may, I propose to deal with Mr Mehndiratta's application as a matter of substance and treat what is contained in the notice of motion as constituting as an amalgam of what relief he seeks and his submissions in support of that relief. By order 6, it was anticipated that a timetable for directions for argument may be made. For reasons that follow, by reason of the content of what Mr Mehndiratta has presented to the Court, such timetable for further directions will no longer be necessary. 7. The substance of Mr Mehndiratta's application, identified in the title on the cover page of the notice of motion and on page 2 of the document (there was no paragraph numbering) was to "review and waive the costs orders in full'. I take this to amount to an application to set aside the costs order in order 5 of the reasons for judgment so that the plaintiff would pay no costs to the defendants/cross-claimants. Certainly there was nothing in Mr Mehndiratta's motion suggesting that the owners should pay the builder any costs (noting that the builder was legally represented for part of the proceeding). 8. The grounds, or submissions, underlying that application, as they appear in the same document, may be summarised as being as follows: 1. the Court required Mr Mehndiratta to present the case at the hearing personally, disregarding medical advice which he had received, which meant that the builder was not adequately represented; 2. the Court rejected Mr Mehndiratta's application to adduce oral evidence from a witness (Ms Devi) and the (associated) application for an adjournment; 3. the owners had themselves breached court directions in respect to the service of evidence; 4. the owners acted improperly during the hearing by being in contact with their building expert, Mr O'Donnell; 5. after the builder ceased performing works on the subject property, the building had been tampered with; 6. the Court's 'rulings' were unreasonable in light of the evidence, resulting in 'contradictory financial judgments'; 7. the Court's rejection of the builder's applications for the Court to compel the attendance, for cross-examination, of third parties and site inspections; 8. Grounds or submissions (1)-(7) all betokened a 'pronounced bias' (by me) against the builder; 9. the Court denied pro bono representation to the builder; 1. Before I address these points, it may appear obvious from the title of the case that my judgment on 15 September 2023 was not the first of the judgments I delivered during the course of the hearing. Many other judgments (which were published on Caselaw [1] ) were delivered in response to interlocutory procedural applications; all of which were brought by Mr Mehndiratta during the hearing. Many of the Mr Mehndiratta's grounds for applying to set aside the costs order identified above concern determinations made in those interlocutory judgments. Consideration of the application The bias complaint 1. As indicated, among the submissions is an allegation of 'pronounced bias' by me against the builder. It is appropriate to address that point first [2] . I understand it to mean an allegation of actual bias, rather than apprehended bias, but this difference is immaterial in the circumstances. 2. Although Mr Mehndiratta did not expressly ask me to recuse myself from determining this particular application, some readers may wonder whether and why in the light of an allegation of bias brought against me, I can proceed to determine Mr Mehndiratta's application to set aside the costs order. 3. The answer, in short, is partly substantive and partly one of practical necessity. 4. The circumstance that Mr Mehndiratta contends that in the reasons for judgment on 15 September 2023, and earlier interlocutory judgments, I had rejected his arguments or applications provides no proper basis for me to disqualify myself from determining the current application to set aside a costs order I had made. 5. If Mr Mehndiratta's point about actual bias is made good on any appeal, all of the substantive orders made on 15 September 2023 would be set aside for being tainted by that bias in any event, including the costs order which Mr Mehndiratta now separately seeks to set aside by this application. 6. Moreover, it cannot be expected that a trial judge, especially after a hearing as lengthy as this one, can abdicate their duty to see through litigation to its conclusion because of a complaint of actual bias, centred upon rulings which were adverse to Mr Mehndiratta. 7. For these reasons (at least) there is no impediment to me determining this application. The other complaints 1. With limited exceptions, the other points raised by Mr Mehndiratta do not provide even an arguable basis for setting aside the costs order made on 15 September 2023. Arguments about the 'reasonableness' or correctness of the judgment given that day do not provide a proper basis. Nor do arguments about the consequences of procedural interlocutory judgments that were adverse to Mr Mehndiratta; nor do arguments about my suggested 'disregard' of Mr Mehndiratta's ill-health or the adequacy (or otherwise) of the plaintiff's representation. 2. The costs order that was made was a conventional consequence of the outcome of the litigation. Although costs orders are discretionary (s 98 of the Civil Procedure Act 2005 (NSW)) the rule in 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) that costs follow the event is described as the 'general rule'. None of the matters identified by Mr Mehndiratta derogate from the basic principle that the primary purpose for costs orders is to compensate the successful party: Oshlack v Richmond River Council (1998) 193 CLR 72. By reason of the set-off, I determined that the owners were the successful party in the proceeding. 3. It is well-established that the impecuniosity of a litigant provides no reason why the Court would exercise its costs discretion contrary to the ordinary rule that costs follow the event (Northern Territory v Sangare (2019) 372 ALR 117 at [32]-[33]). 4. The arguments which do cause me to give some, albeit brief, reconsideration are the circumstance that the orders indicated two separate monetary judgments and the contention of a breach of court orders by the owners or improper conduct by the owners in talking to their building expert during the hearing. 5. As to the former, on one view, there were two 'events' determined in the reasons for judgment: the first being the builder's claim for unpaid fees; the second being the owners' claim for damages for defective and incomplete works in breach of statutory warranties. In other circumstances, a costs order might have been ordered to reflect each 'event.' It is not untypical, of course, for costs orders to be moulded where there are mixed outcomes and separable issues. But as I explained in the reasons, the owners, by their pleadings, plainly notified the builder of their intention to rely upon the facts sustaining their claim to extinguish any liability they had for the unpaid fees. The orders that I made reflected the operation of s 96(3) of the Civil Procedure Act. No application has been made to set order 3 aside. That order is taken to be regular until set aside on any successful appeal. 6. As to the latter, dealing with the first aspect of the argument it may be accepted that conduct by a 'successful' party (overall) may disentitle the parties to costs, wholly or partly. But it is a commonplace, even if it is sometimes regrettable, in building litigation that timetables for directions, including the service of evidence are sometimes not complied with. When that occurs, if a breach of a court timetable occasions financial detriment to a party not in breach, then it behoves that party to seek a costs order at or about the point of breach; i.e. to the Registrar or judicial officer who is in a position to make such order proximate to the time when the direction is not complied with. It is not to store it up at the end of the proceeding, once the (ultimate) result is known as a basis for seeking an exception or modification to the final order for costs made by the Court. Trial judges in this Court are in a different position to judges in other courts that operate under a 'docket' system, who have regular oversight over proceedings, including pre-trial directions and motions. It is not automatically the case that even when judges in this Court do have oversight or familiarity with proceedings, by reason of their being involved in pre-hearing directions or motions (such as when they perform the function of being a List Judge) that they will go on to preside at the hearings of the proceedings. Accordingly once trial judges have given their decision, they should not, be expected to trawl through the entrails of the entire proceedings (this one being of 5 years' duration) with a view to determining modifications or exceptions to the final costs order because of suggested non-compliance with directions throughout the proceeding. 7. As to the argument about the owners talking with their building expert, during the hearing (and, as I recall, during the expert's cross-examination), the position made apparent by Mr O'Donnell and the owners was that such discussion centred only upon the payment by the owners' fees. It had nothing to do with the content of the expert's evidence; or that of the owners. That evidence was not challenged by Mr Mehndiratta. Even if it was, no court order was breached, as Mr Mehndiratta suggests, even if the owners acceded to Mr Mehndiratta's request during the hearing that they remain outside the courtroom when Mr O'Donnell gave his evidence (notwithstanding their right, as parties, to be inside the Courtroom to hear it). Conclusion 1. Mr Mehndiratta has had the opportunity to apply to set aside the costs order and to furnish supporting evidence. No additional or supplementary 'evidence' from him would strengthen the grounds or arguments for the application articulated in the paperwork he has supplied to my Associate if (which he did not ask for) he were given further opportunity (as an indulgence) to put on supplementary evidence. There is nothing in the plaintiff's notice of motion or affidavit, which requires the Court to hear from the defendants/cross-claimants before the Court is in a position to make its decision. 2. Mr Mehndiratta's notice of motion dated 27 September 2023 is dismissed. ********** Endnotes 1. Robust Builders Pty Ltd v Barai [2023] NSWDC 371; Robust Builders Pty Ltd v Barai (No.2) [2023] NSWDC 372; Robust Builders Pty Ltd v Barai (No.3) [2023] NSWDC 373; Robust Builders Pty Ltd v Barai (No.4) [2023] NSWDC 374 and Robust Builders Pty Ltd v Barai (No.5) [2023] NSWDC 375 2. Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [2]–[3], [117] 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: 03 October 2023