Neville’s Bus Service Pty Ltd v Total Group Constructions Pty Ltd (No 2) [2024] NSWSC 393

Supreme Court New South Wales

Medium Neutral Citation: Neville's Bus Service Pty Ltd v Total Group Constructions Pty Ltd (No 2) [2024] NSWSC 393 Hearing dates: On the papers Decision date: 15 April 2024 Jurisdiction: Equity - Technology and Construction List Before: Ball J Decision: The defendants pay the plaintiff's costs of the proceedings to be agreed or assessed. Catchwords: COSTS — Party/Party — Exceptions to general rule that costs follow the event — Whether circumstances warrant departure from principle that costs follow the event Legislation Cited: Australian Consumer Law Uniform Civil Procedure Rule 2005 (NSW) Cases Cited: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Neville's Bus Service Pty Ltd v Total Group Constructions Pty Ltd [2024] NSWSC 215 Category: Costs Parties: Neville's Bus Service Pty Ltd (Plaintiff) Total Group Constructions Pty Ltd (First Defendant) Jay Roberto Squillacioti (Second Defendant) Ronisch Pty Ltd (Third Defendant) Lisa May Squillacioti (Fourth Defendant) MSL Consulting Pty Ltd (Fifth Defendant) Representation: Counsel: NJ Kidd SC with J Adamopoulos (Plaintiff) M Klooster (First to Fourth Defendants)

Solicitors: Madison Marcus (Plaintiff) Somerville Legal (First to Fourth Defendants) File Number(s): 2020/142849 Publication restriction: None

JUDGMENT 1. On 8 March 2024, I delivered reasons for judgment in this matter in which I found that the defendants were liable for the costs of rectifying defects in the concrete pavement of a bus depot that the first defendant had constructed on the plaintiff's land: see Neville's Bus Service Pty Ltd v Total Group Constructions Pty Ltd [2024] NSWSC 215. The second to fourth defendants guaranteed the first defendant's obligations under the relevant construction contract. 2. In reaching the conclusion that the defendants were liable, I accepted with a number of minor modifications the evidence given by Mr David Madden, the quantity surveyor engaged by the plaintiff, on the costs of replacing the pavement in accordance with a scope of works which had been substantially agreed by the parties' liability experts in a joint conclave. I say "substantially" because Mr Richard Noonan, one of the defendants' experts, had expressed the view that only part of the pavement needed to be replaced and Mr Topolinsky, one of the experts called by the plaintiff, expressed the view that the whole of the pavement needed to be replaced whereas Dr Tian Ng, the other expert called by the defendants, expressed the view, which was ultimately accepted by the plaintiff, that a small part of the pavement did not need to be replaced. There was also a dispute between the liability experts on the required thickness of the replacement pavement, but again at the final hearing the plaintiff accepted the opinion of Dr Ng on the basis that the thickness adopted by him was consistent with the contractual specifications. 3. As a consequence of the conclusions I reached, it was necessary for some further calculations to be undertaken. The details of those calculations are not important. Ultimately, the parties agreed that as a result of the conclusions I had reached the plaintiff was entitled to judgment against the defendants in the amount $10,940,098.26. Judgment was entered in favour of the plaintiff for that amount on 5 April 2024. The only outstanding question is costs. 4. Unsurprisingly, the plaintiff seeks its costs of the proceedings. The defendants resist an order in those terms. They contend that an appropriate order is that the defendants pay 50 percent of the plaintiff's costs. That is said to be so because: 1. The plaintiff abandoned a claim for misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law prior to the commencement of the hearing; 2. The plaintiff abandoned the claim for consequential loss at the hearing; 3. The plaintiff was not entirely successful in its claim. 1. One circumstance in which the Court may depart from the principle stated in Uniform Civil Procedure Rules 2005 (NSW) r 42.1 that normally costs follow the event is where there are multiple issues and the successful party failed on one or more issues that were clearly dominant or were separable and took up a significant part of the trial either by way of evidence or argument: see Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304. 2. In my opinion, none of the matters the defendants point to justify a departure from the normal principle that costs should follow the event. 3. Neither the claim for misleading or deceptive conduct nor the claim for consequential loss formed a dominant part of the case or was clearly separable. 4. The claim for misleading or deceptive conduct was a claim that the first defendant represented in a certificate given in connection with the work that the concrete paving was structurally adequate, complied with relevant standards and complied with the structural drawings. The case depended on the contents of the certificate and added nothing to the claim that the pavement did not comply with the contractual specifications. It did not require any additional evidence to be filed. 5. The claim for consequential loss arose from the fact that at the time the proceedings were commenced the plaintiff used the land as a bus depot. The claim was based on the assumption that it would be necessary to find alternative premises while the pavement was replaced. Shortly before the hearing, a contract that the plaintiff had with Transport for New South Wales came to an end (and was not renewed) with the result that the depot is not currently being used. It was in that context that the claim for consequential loss was abandoned. The plaintiff's evidence on the topic was brief. The defendants served no evidence at all on the topic. The issue occupied two paragraphs of the plaintiff's opening submissions and one paragraph of the defendants'. There was little cross‑examination on the issue. Although the claim itself was for a significant amount, only a small amount of time was devoted to it. The time that was devoted to it does not justify a departure from the usual order in relation to costs. 6. None of the issues relating to the quantification of the plaintiff's claim were clearly dominant or severable. As I have said, one issue was whether the entire pavement needed to be replaced or whether only most of it required replacement. The question whether the entire pavement needed to be replaced could not be regarded as a separate question from whether most of it needed to be replaced. Nor was it a dominant issue. 7. A second item pointed to by the defendants was a dispute between the quantity surveyors on how much should be allowed to fill "soft spots" before the new pavement was laid. Mr Michael Sturgess, the quantity surveyor called by the defendants, allowed $20,000. Mr Madden allowed $30,000. In my judgment, I allowed an amount of $25,000. That issue could hardly be described as a clearly dominant or separable issue. 8. The last issue raised by the defendants concerns the amount that should be allowed for pre‑judgment interest. I concluded that no amount should be allowed for pre‑judgment interest because the period over which pre-judgment interest might have been allowed was short and the plaintiff would be adequately compensated for increases in price between the time the quantity surveyors produced their joint report and the time of judgment by the allowance for contingencies. Again, it is impossible to describe that issue as a clearly dominant or separable issue in the case. 9. It follows that the order of the Court is that the defendants pay the plaintiff's costs of the proceedings to be agreed or assessed.