DRUMMOND AND ROSEN PTY LIMITED v EASEY & ORS [NO 2] [2009] NSWCA 331

New South Wales Court of Appeal

CITATION: DRUMMOND AND ROSEN PTY LIMITED v EASEY & ORS [NO 2] [2009] NSWCA 331

HEARING DATE(S): On the papers.

JUDGMENT DATE: 20 October 2009

JUDGMENT OF: Tobias JA at 1; Macfarlan JA at 2; Handley AJA at 9

(1) The orders for costs included in orders (2), (3), (4), (5) and (8) made by this Court on 16 April 2009 are varied as herein provided. (2) Order (2) is varied by adding "to be paid by the first and second defendants jointly, jointly and severally with the third defendant and the plaintiff, the order against the plaintiff only to be enforceable to the extent, if any, that the fourth defendant is unable to recover its costs of the action from the other defendants." (3) Order (3) against the owners is varied by adding "such costs to be on an indemnity basis from 20 June 2006." (4) Order (4) against the builders is varied by adding "such costs to be on an indemnity basis from 20 June 2006." (5) Order (8) is varied by adding "the orders against the first, second and third respondents only to be enforceable to the extent, if any, that the appellant is unable to recover its costs of the appeal from the fourth respondent." (6) The appellant to pay the plaintiff's and the builders' costs of the Notice of Motion of 30 April 2009. (7) The owners to pay one half of the appellant's costs of the Notice of Motion of 30 April 2009 in so far as that Notice of Motion related to claims against the owners. DECISION: (8) The plaintiff's Notice of Motion of 16 June 2009 dismissed as incompetent, with no order as to costs. (9) In this order: X – equals the total amount of costs and disbursements which the architects have paid or are liable to pay to their legal advisers in connection with these proceedings. Y – equals the total amount of costs and disbursements allowed on assessment to the architects in connection with these proceedings. The Allowed Percentage equals ((y/x) x 100)% Order the owners and the builders to pay to the architects interest on costs and disbursements, at the rates set out in Schedule 5 Uniform Civil Procedure Rules, on the Allowed Percentage of each amount of costs and disbursements actually paid by the architects, from the date of payment by the architects of each such amount of costs and disbursements until the first to occur of: (a) such time as the owners or builders have paid the costs due to the architects under any order made in these proceedings, or (b) the assessment of the costs to which the architects are entitled pursuant to the costs orders in their favour. (10) Grant liberty to the architects to apply upon 3 days notice to the other parties for an order for payment of a specific amount in respect of the interest awarded upon costs pursuant to Order (9).