TP Projects Pty Limited v Lamio Masonry Services Pty Limited [2015] NSWDC 163

District Court New South Wales

Medium Neutral Citation: TP Projects Pty Limited v Lamio Masonry Services Pty Limited [2015] NSWDC 163 Hearing dates: 8 May 2015 Date of orders: 08 May 2015 Decision date: 08 May 2015 Jurisdiction: Civil Before: Neilson DCJ Decision: (1) Leave granted to the plaintiff to discontinue proceedings. (2) Plaintiff to pay the defendant's costs up to 5pm on Friday, 14 November 2014 (3) Defendant to pay the plaintiff's costs on the ordinary basis from Monday, 17 November 2014 including the costs of this motion (4) Application to set aside the order for costs made by Robison DCJ on 19 December 2014 refused (5) Registrar pay to the plaintiff the money paid into the Court by the plaintiff as security for the defendant's costs. Catchwords: COSTS – Whether defendant's failure to accept offer of settlement unreasonable– Adjudication certificate favourable to plaintiff issued – Offer of settlement made by plaintiff on same day, lapsed – Subsequent offer of settlement made by plaintiff two days later, lapsed – Defendant unsuccessfully sought to challenge adjudication certificate in Supreme Court – Defendant entered into Deed of Company Arrangement: proceedings not maintainable by plaintiff – Proceedings discontinued – Costs incurred since time that discontinuance ought to have been filed – Defendant's acceptance of offer would have obviated subsequent proceedings and costs – Failure to accept offer unreasonable

COSTS – Whether costs ought to follow the event – Plaintiff commenced proceedings in District Court – Adjudication determined favourably to the plaintiff subsequently – Plaintiff discontinued proceedings – Adjudication ought to have been had prior to commencing proceedings – Costs to follow event Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Building and Construction Industry Security of Payment Act 1999 (NSW) Corporations Act 2001 (Cth) Industrial Relations Act 1996 (NSW) Cases Cited: Australian Securities Commission v Berona Investments Pty Ltd (1995) 18 ACSR 772 Lamio Masonry Services Pty Ltd v TP Projects Pty Ltd [2015] NSWSC 127 Newcastle Wallsend Coal Co Pty Ltd v Industrial Relations Commission of NSW [2006] NSWCA 129 Powercoal Pty Ltd v IRC of NSW [2005] NSWCA 345; (2005) 156 A Crim R 269 One Tel Ltd v Deputy Commissioner of Taxation [2000] FCA 270 Category: Procedural and other rulings Parties: TP Projects Pty Limited (Applicant/Plaintiff) Lamio Masonry Services Pty Limited (Respondent/Defendant) Representation: Solicitors: Mr P Brown of WMD Law (Applicant/Plaintiff) Mr D Doyle of Doyles Construction Lawyers (Respondent/Defendant) File Number(s): 2014/129775 Publication restriction: No