Isles v Alpine Designer Homes Pty Ltd (Administrators Appointed) [2024] NSWSC 1379

Supreme Court New South Wales

Medium Neutral Citation: Isles v Alpine Designer Homes Pty Ltd (Administrators Appointed) [2024] NSWSC 1379 Hearing dates: On the papers; written submissions 18, 21 and 23 October 2024 Date of orders: 30 October 2024 Decision date: 30 October 2024 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Plaintiffs to pay defendants' costs of the plaintiffs' Notice of Motion of 10 July 2024 Catchwords: COSTS – party/party – costs orders in interlocutory proceedings – where plaintiff did not press notice of motion – plaintiff to pay defendant's costs of notice of motion Legislation Cited: Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) Corporations Act 2001 (Cth) Cases Cited: Wonderful Pty Ltd v Faithful Investment Pty Ltd [2024] NSWSC 472 Category: Costs Parties: Andrew Isles (First Plaintiff/Applicant) Victoria Isles (Second Plaintiff/Applicant) Alpine Designer Homes Pty Ltd (Administrators Appointed) (Defendant/Respondent) Representation: Counsel: M F Newton (Plaintiffs/Applicants) A Shearer SC (Defendant/Respondent)

Solicitors: Michael Bowyer Advisory (Plaintiffs/Applicants) Gilchrist Connell (Defendant/Respondent) File Number(s): 2023/465008

JUDGMENT 1. The plaintiffs, Mr Andrew and Ms Victoria Isles, are the registered proprietors of a property in Clareville. 2. On 22 December 2023 they commenced these proceedings against the defendant, Alpine Designer Homes Pty Ltd ("Alpine"), seeking damages in relation to alleged defects in the Clareville property caused by building work undertaken in 2015 and 2016 by Alpine with the plaintiffs' predecessors in title. 3. Alpine is named as an insured under a Public and Products Liability Policy (the "Policy") issued by ATC Insurance Solutions Pty Ltd ("ATC") as agent for Certain Underwriters at Lloyds (the "Underwriters"). 4. Without prejudice to its and the Underwriters' rights under the Policy, ATC retained Gilchrist Connell to act for Alpine in these proceedings. 5. On 24 April 2024, Alpine went into voluntary administration. The proceedings were thereby stayed by reason of s 444E of the Corporations Act 2001 (Cth) (the "Act"). 6. On 22 May 2024, the Administrator made a report to creditors in which he stated: "I have liaised with the Company's pre-appointment insurance broker and been advised of a number of potential claims against the Company, for which I understand the Company's insurer is assessing whether coverage applies, summarised as follows: Contingent Liabilities Estimated $ Notes Andrew & Vicky Isles (Clareville – Supreme Court Proceedings) 1,750,000 Disputed by Director and currently being defended by lawyers for Company's insurer"