ARTISTIC BUILDERS PTY LIMITED & ANOR v NASH & ORS [2011] NSWSC 350

Supreme Court New South Wales

Medium Neutral Citation: ARTISTIC BUILDERS PTY LIMITED & ANOR v NASH & ORS [2011] NSWSC 350 Hearing dates: 18 March 2011 Decision date: 03 May 2011 Jurisdiction: Criminal Before: Hall J Decision: Judgments (1) Verdict and judgment for the second plaintiff, ABC Plumbing Services Pty Limited, against the 11 th to 17 th defendants (Harris & Co) in the amount of $3,500,000 inclusive of pre-judgment interest and costs. (2) Verdict and judgment for the 1 st to 4 th defendants, Nash O'Neill Tomko Lawyers, against the first and second plaintiffs. Costs (1) The period 11 July 2001 to 8 June 2007 (1) That the 11 th to 17 th defendants (Harris & Co) directly pay 50% of the costs claimed by NOT Lawyers against Artistic on the ordinary basis as agreed or assessed in respect of the period 17 October 2002 to 26 March 2007. (2) Accordingly, Artistic is to pay:- (a) The costs claimed by NOT Lawyers on the ordinary basis as agreed or assessed for the period 11 July 2001 to 16 October 2002; (b) 50% of the costs claimed by NOT Lawyers on the ordinary basis as agreed or assessed in the period 17 October 2002 to 26 March 2007. (3) Harris & Co is to be liable for the balance, 50% of NOT Lawyers' costs, in respect of the period referred to in (2)(b) above. (2) The period 9 June 2007 to 15 March 2009 An order that the second plaintiff, ABC Plumbing Services Pty Limited, pay the 1 st to 4 th defendants, Nash O'Neill Tomko Lawyers, costs on the ordinary basis, as agreed or assessed, for the period 9 June 2007 to 15 March 2009. (3) Order apportioning NOT Lawyers' costs from 16 March 2009 An order apportioning the costs of NOT Lawyers from 16 March 2009, on the basis that NOT Lawyers are entitled to 20% of the costs on the ordinary basis as agreed or assessed in respect of the period from 16 March 2009 to date of judgment. (4) The period 16 March 2009 to date of judgment An order in respect of NOT Lawyers' claim for costs that the second plaintiff, ABC Plumbing Services Pty Limited, pay 20% of the costs of the 1 st to 4 th defendants, Nash O'Neill Tomko Lawyers, on the ordinary basis as agreed or assessed in respect of the period 16 March 2009 to date of judgment. Noted:- (1) The above orders do not affect any previous costs orders made in the proceedings. (2) In relation to the application for costs by NOT Lawyers, the plaintiffs and Harris & Co have been successful on a number of issues. The parties are to advise my associate whether costs associated with the application for costs by NOT Lawyers are to be resolved by agreement. Leave to apply on that question. Stay order In respect of the notice of motion of the 11 th to 17 th defendants, Harris & Co, filed on 22 February 2011, I make the following orders:- (1) Order that the judgment in favour of the second plaintiff, ABC Plumbing Services Pty Limited, referred to in paragraph [128(1)] be stayed until further order of the Court. (2) Order that the second plaintiff, ABC Plumbing Services Pty Limited, pay the 11 th to 17 th defendants, Harris & Co's, costs of the motion as agreed or assessed. Catchwords: COSTS - professional negligence action against two firms of solicitors by two plaintiffs - second plaintiff successful against the second firm - costs application by the first firm (the successful defendant) - by reason of its Limitation Act defence - Professional Standards Act - "statutory cap" by reason of interaction of s.4 and s.29 of that Act APPORTIONMENT OF COSTS - second plaintiff successful in establishing liability issues against the first firm but failed on limitation defence - liability issues (breach of duty, causation and consequential damages) determined in favour of second plaintiff were severable and dominant issues from the limitation issue - apportionment of costs in those circumstances appropriate - the first firm entitled to on 20% of its costs from the date the second plaintiff brought its claim against that firm - the first plaintiff entitled to a partial direct costs order against the unsuccessful defendants in respect of the costs of the first firm - first plaintiff's claim was a different claim to that of the second plaintiff - limitation under s.29 of the Professional Standards Act did not apply to the making of a direct order against the unsuccessful defendants to pay a portion (50%) of the successful defendants' costs Legislation Cited: Civil Procedure Act 2005 Limitation Act 1969 Professional Standards Act 1994 Cases Cited: Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 Artistic Builders Pty Limited & Anor v Nash & Ors [2010] NSWSC 1442 Bankamerica Finance Limited v Nock [1988] 1 AC 1002 Bostik Australia Pty Limited v Liddiard (No 2) [2009] NSWCA 304 Commonwealth of Australia v Gretton [2008] NSWCA 117 Council of the City of Liverpool v Turano (No 2) [2009] NSWCA 176 Dobbs Family Investments Pty Limited v Lane Industries Pty Limited (1993) 26 IPR 261 Elite Protective Personnel Pty Limited & Anor v Salmon (No 2) [2007] NSWCA 373 Gould v Vaggelas (1983-1985) 157 CLR 215 Hughes v Western Australian Cricket Association (1986) ATPR 40-748 James v Surf Road Nominees (No 2) [2005] NSWCA 296 Johnsons Tyne Foundry Pty Limited v Maffra Corporation (1948) 77 CLR 544 Milne v Attorney General (Tas) (1956) 95 CLR 460 Oshlack v Richmond River Council (1998) 193 CLR 72 Sanderson v Blyth Theatre Company [1903] 2 KB 563 Scherer v Counting Instruments Limited (Note) (1986) 1 WLR 615 State of NSW v Stanley [2007] NSWCA 330 Stevedoring Industry Finance Committee v Gibson (2000) NSWCCR 417 Sved v Council of the Municipality of Woollahra (1998) NSW Conv R 55-842 Turkmani v Visvalingam (No 2) [2009] NSWCA 279 Wardley Australia Limited v Western Australia (1992) 175 CLR 514 Waters v PC Henderson (Aust) Pty Limited (NSW Court of Appeal, unreported 6 July 1994) Texts Cited: Law of Costs by G E Dal Pont [2003] at [11.9] Category: Costs Parties: ARTISTIC BUILDERS PTY LIMITED v NASH, Gregory & ORS Representation: Counsel: P: C R Newlinds SC/A Horvath 1-4D: N Kabilafkas 11-17D: D C Fagan SC/M S White Solicitors: P: HWL Ebsworth 1-4D: Henry Davis York 11-17D: Yeldham Price O'Brien Lusk File Number(s): 2001/67264