Walter Construction v Walker Corporation [2001] NSWSC 359

New South Wales Supreme Court

CITATION : Walter Construction v Walker Corporation [2001] NSWSC 359 CURRENT JURISDICTION: Equity Division Commercial Lisr FILE NUMBER(S) : SC 55028/98 HEARING DATE(S) : 27.4.01 JUDGMENT DATE : 4 May 2001

PARTIES : Walter Construction Group Ltd -v- Walker Corporation Ltd JUDGMENT OF : Hunter J

COUNSEL : Plaintiff: M A Pembroke SC, P Liney Defendant: L G Foster SC, K Williams SOLICITORS : Plaintiff: Corrs Chambers Westgarth Defendant : Baker & McKenzie CATCHWORDS : Practice and Procedure - costs - Calderbank offer to several defendants - application for indemnity costs - offer only capable of joint acceptance - time for acceptance limited - highly complex issues in proceedings. Archer v Archer (No.2) [2000] NSWCA 315 (9 November 2000, unreported) Clarke v Beverstock (Handley JA, 4 February 2000, unreported) CASES CITED : MGICA (1992) Ltd v Kenny & Good Pty Ltd (No2) (1996) 70 FCR 236 Oxlade v Gosbridge Pty Ltd (No2) [1999] NSWCA 165 Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425 Nobrega v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (No2) [1999] NSWCA 133 (21 May 1999, unreported) DECISION : Application for indemnity costs rejected.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST HUNTER J FRIDAY 4 MAY 2001 55028/98 WALTER CONSTRUCTION GROUP LIMITED -v- WALKER CORPORATION LIMITED & ORS REASONS FOR JUDGMENT

1 In these reasons I have used the terminology adopted in the principal judgment. 2 On 20 April 2001 judgment was given in this matter in favour of CCG against WCL in the sum of $17,514,521 inclusive of interest up to and including 19 April 2001. The judgment was based on the referee's finding that CCG was entitled to be compensated as on a quantum meruit in the sum of $13,970,177, a sum which was calculated after making allowance for defect rectification costs of $3,086,311. 3 In the calculation of the judgment sum, allowance was also made for unliquidated damages amounting to $294,034, in accordance with the findings in the report. The damages were largely made up of stock losses and business interruption suffered by retailers in the shopping centre arising out of water damage for which CCG was held responsible. On that basis, the first cross-claim was dismissed with costs as recommended by the referee. 4 In brief, CCG succeeded in respect of the major part of its claim, namely its quantum meruit claim arising out of the repudiation of the agreement by WCL. There is no reason why WCL should not pay CCG's costs of the proceedings. 5 However, CCG seeks an order that those costs be assessed on an indemnity basis from 3 December 1999, that being the date of a Calderbank offer made by it to the first, second, third and fifth defendants (the Walker defendants). The offer was made by facsimile to the solicitors for the Walker defendants in the following terms: " WITHOUT PREJUDICE SAVE AS TO COSTS … We are instructed that our client is prepared to settle proceedings No 55028 of 1998 on the following terms and conditions: 1. Payment by the First, Second, Third and Fifth Defendants to the Plaintiff of the sum of $15 million inclusive of interest. 2. Payment by the First, Second, Third and Fifth Defendants to the Plaintiff of the Plaintiff's costs of the proceedings to be assessed if not agreed. 3. Immediate return by the First Defendant of the Plaintiff's four bank guarantees. 4. All cross-claims to be dismissed. This offer shall remain open for a period of seven (7) days from the date of this letter."