Cleve Smith Excavations Pty Ltd v Hodgson [No 2] [2010] NSWDC 270

New South Wales District Court

CITATION: Cleve Smith Excavations Pty Ltd v Hodgson [No 2] [2010] NSWDC 270

HEARING DATE(S): 5 November 2010

JUDGMENT DATE: 3 December 2010

JURISDICTION: Civil

JUDGMENT OF: Levy SC DCJ

DECISION: 1. Judgment for the defendant cross claimant in the sum of $73.664.37; 2. See paragraph [34] for consequential orders.

CATCHWORDS: JUDGMENTS – calculation by parties of amount of final judgment including interest to reflect findings in primary judgment – application by a party to re-open judgment – whether indicated - PROCEDURE – set-off where claim and cross claim succeeded in differing amounts - COSTS – manner in which costs ought to be payable after set-off – whether indemnity costs indicated

LEGISLATION CITED: Civil Procedure Act 2005, s 98(4)(b)Environmental Planning and Assessment Act 1979, s 76A(1)(b); s 122(b)(ii)Uniform Civil Procedure Rules 2005, r 36.16(1)

Cleve Smith Excavations Pty Ltd v Hodgson [2009] NSWDC 232 CASES CITED: Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256 Texas Co (Australasia) Ltd v Federal Commissioner of Taxation [1940] HCA 9; (1940) 63 CLR 382

PARTIES: Cleve Smith Excavations Pty Ltd (Plaintiff) Martin Robert Hodgson (Defendant)

FILE NUMBER(S): 1493 of 2009; 2009/334526

COUNSEL: Mr J Lazarus (Plaintiff) Mr P Menadue (Defendant)

SOLICITORS: Conditsis & Associates (Plaintiff) Brennan Tipple Partners (Defendant)

JUDGMENT

Background

1. On 15 October 2010, primary findings and reasons for judgment were delivered in these proceedings. A verdict was entered in favour of the plaintiff, Cleve Smith Excavations Pty Ltd, with damages assessed in the sum of $108,148.76. On the defendant's cross claim against the plaintiff, a verdict was entered in favour of the defendant/cross claimant, Mr Hodgson, with damages assessed in the sum of $126,743. These amounts excluded pre-judgment interest : Cleve Smith Excavations Pty Ltd v Hodgson [2009] NSWDC 232.