Stolfa v Owners Strata Plan 4366 & ors [2009] NSWSC 844

New South Wales Supreme Court

CITATION : Stolfa v Owners Strata Plan 4366 & ors [2009] NSWSC 844

HEARING DATE(S) : 27 July 2009 JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 27 July 2009

DECISION : Plaintiff to pay defendants' costs on indemnity basis from date of Calderbank offer

CATCHWORDS : COSTS – where plaintiff failed on two issues but succeeded on a third – where no dispute as to third issue except as to extent of damage caused by defendants – where plaintiff fails to better Calderbank offer – held: plaintiff to pay defendants' costs on an indemnity basis, except for cost of expert's report relevant to issue to be decided on subsequent inquiry as to damages

CATEGORY : Consequential orders

CASES CITED : Stolfa v Owners Strata Plan 4366 & ors [2009] NSWSC 589

Veronica & Raffaele Stolfa (plaintiffs) PARTIES : Owners Strata Plan 4366 (first defendant) John Hempton & Joanna Kalowski (second defendants) Stephen Hempton & Tonia Tschanz (third defendants)

FILE NUMBER(S) : SC 4087/07

COUNSEL : Mr M A Ashhurst SC (plaintiffs) Mr P W J Gray SC (second & third defendants)

SOLICITORS : W G McNally Jones Staff (plaintiffs) David Le Page (defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Monday 27 July 2009

4087/07 Veronica Stolfa & Anor v The Owners Strata Plan 4366 & 4 Ors JUDGMENT (ex tempore) 1 HIS HONOUR: Three issues arise for present consideration consequent upon the judgment given on 26 June 2009 [Stolfa v Owners Strata Plan 4366 & ors [2009] NSWSC 589]. 2 The first is the question of costs of the proceedings to date. The plaintiffs failed on what can conveniently be called "the void issue" and "the lot 3 issue". However, they succeeded in obtaining declarations to the effect that the second and third defendants were liable to compensate them for the reasonable costs of repairing damage occasioned to Unit 2 by the performance of building works by or on behalf of those defendants in and about Units 1 and 3, in respect of which there is to be an inquiry as to damages. 3 The defendants submit that, insofar as the plaintiffs succeeded on "the damages/nuisance issue", it was never in dispute in the proceedings. As I recorded in the principal judgment, although it has never been an issue that the works carried out by the Hemptons and by Stephen Hempton have caused damage to Unit 2, and that those defendants are liable to make good that damage, there was and remains controversy as to the extent of the damage so caused. While the defendants acknowledged that the damage so caused would have to be fixed, and made an initial offer of $5,000 to constitute a fund towards the cost of those repairs, there appears to be a considerable gulf between what the Stolfas asserted was the relevant damage and what the defendants were prepared to acknowledge. The defendants did contest issues of causation and quantum. Those issues remain unresolved, and will only be resolved on the inquiry as to damages, although some evidence relevant to them in the hearing. 4 Not before the Court at the time of the substantive hearing – because the correspondence was without prejudice as to costs – was a letter of 21 December 2007, from the defendants' solicitor Mr Le Page to the plaintiffs' solicitor, covering a letter of 19 December 2007 from the defendants to their solicitor which they asked to be conveyed to the plaintiffs. In the 19 December letter, the defendants wrote: B. Damage to Stolfas' Property