Hetherington v Mirvac Pty Ltd & 3 Ors [1999] NSWSC 515

New South Wales Supreme Court CITATION : Hetherington v Mirvac Pty Ltd & 3 Ors [1999] NSWSC 515 CURRENT JURISDICTION : Civil FILE NUMBER(S) : 20982/86 HEARING DATE(S) : JUDGMENT DATE : 31 May 1999

Garry Colin Hetherington Mirvac Pty Ltd PARTIES : Taylor & Scott Boral Roof Tiles Ltd Keddies JUDGMENT OF : Wood CJatCL

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

R.P. McLoughlin SC with P.A. Regattieri (P) C.Simpson (1d) COUNSEL : M.L. Williams (2d) G. Curtin (3d) N. Perram (4d) Hunt & Hunt (P) Minter Ellison (1d) SOLICITORS : Colin Biggers & Paisley (2d) Phillips Fox (3d) Mallesons (4d) CATCHWORDS : DECISION : Order - Plaintiff to pay costs of Mirvac on party-party basis up to 18 November 1998 and upon indemnity basis therafter; Order - Plaintiff to pay costs of Boral on party-party basis up to 22 August 1995 and upon an indemnity basis thereafter; Order - Plaintiff to pay costs of Taylor & Scott and of Keddies, confined to the claims brought against them for negligence, on a party-party basis; Stay granted in relation to costs orders for 28 days

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

WOOD CJ AT CL

MONDAY 31 MAY 1999 20982/86 - GARRY COLIN HETHERINGTON V MIRVAC PTY LIMITED & ORS JUDGMENT - On costs

1 HIS HONOUR: This matter has been relisted in order to determine the outstanding issues as to costs of the proceedings. Boral 2 It has now been shown, in relation to the proceedings concerning this party, that: (a) On 6 April 1993 Boral, through its solicitors, made an offer to Taylor & Scott to bear its own costs of the proceedings if they were discontinued against it, and outlined the basis on which it contended that the proceedings against it should fail. (b) This offer was repeated in a Calderbank letter from Boral's solicitors to Keddies dated 9 February 1995, in which Boral advised that it intended to seek costs upon an indemnity basis from that date, if this offer was not accepted. (c) On 22 August 1995 Boral's solicitors wrote to Hunt & Hunt, drawing attention to the fact that special leave to appeal from the decision in O'Brien v Boral Roof Tiles had been refused by the High Court, and repeated the offer contained in the letter of 9 February 1995. (d) On 12 December 1995 a letter was sent advising that the earlier offer remained open and again giving notice of Boral's intention to seek indemnity costs. (e) Mediation was attempted, unsuccessfully, on 29 May 1998.