Boral Resources (NSW) Pty Ltd v Gangi [2014] NSWCA 287

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Boral Resources (NSW) Pty Ltd v Gangi [2014] NSWCA 287 Hearing dates: 23-24 July 2014 Decision date: 28 August 2014 Before: Basten JA at [1]; Gleeson JA at [2]; Leeming JA at [3] Decision: 1. Appeal dismissed with costs. 2. Cross-appeal allowed in part. 3. Set aside the costs order made on 20 September 2013, and in lieu thereof order that Boral pay (a) Mr Gangi's costs thrown away by reason of the adjournment, and (b) 90% of the balance of Mr Gangi's costs of the proceedings. 4. Otherwise dismiss the cross-appeal. 5. Order that Boral pay 25% of Mr Gangi's costs of the cross-appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: COSTS - challenge to special order that successful plaintiff be paid only a percentage of his costs - not unreasonable for defendant to refuse Calderbank offer - no error in rejecting submission that defence was improperly maintained - power to reduce costs even where a plaintiff obtained a substantial verdict in his favour - costs discretion re-exercised in light of other errors disclosed in reasons

TORTS - negligence - owner and operator of concrete batching plant failed to inspect and maintain all structural elements - plant collapsed on truck driver - challenge to findings of liability and breach based on impermissible use of hindsight - challenge to drawing of inference from owner's failure to adduce evidence of results of forensic investigation into collapse - primary judge expressly found owner liable without needing to rely on inferences - damages - factual challenges to heads of economic and non-economic loss Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-60, 98 Civil Liability Act 2002 (NSW), ss 5B-5E Evidence Act 1995 (NSW), s 140 Workers Compensation Act 1987 (NSW), s 151Z Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.34 Cases Cited: Apostolidis v Kalenik (No 2) [2011] VSCA 329; 35 VR 563 Arian v Nguyen [2001] NSWCA 5 Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1 Briginshaw v Briginshaw (1938) 60 CLR 336 Bunnings Group Ltd v Borg [2014] NSWCA 240 Calderbank v Calderbank [1975] 3 All ER 333 Callaghan v William C Lynch Pty Ltd [1962] NSWR 871 Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 House v The King (1936) 55 CLR 499 James v Surf Road Nominees Pty Limited [No 2] [2005] NSWCA 296 Jones v Dunkel (1959) 101 CLR 298 Maestrale v Aspite [2014] NSWCA 182 Masterton Homes Pty Ltd v LED Builders Pty Ltd [1996] FCA 171; 33 IPR 417 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 Texts Cited: R Cross and J Harris, Precedent in English Law, (4th ed 1991, Clarendon Press Oxford) Category: Principal judgment Parties: Boral Resources (NSW) Pty Limited (Appellant/Cross Respondent) Salvatore Gangi (Respondent/Cross Appellant) Representation: Counsel: M T McCulloch SC with R Gambi (Appellant/Cross Respondent) D J Russell SC with N Ghabar (Respondent/Cross Appellant)