Thiess Pty Ltd v Dobbins Contracting Pty Ltd (No 2) [2016] NSWSC 547

Supreme Court New South Wales

Medium Neutral Citation: Thiess Pty Ltd v Dobbins Contracting Pty Ltd (No 2) [2016] NSWSC 547 Hearing dates: On the papers Date of orders: 04 May 2016 Decision date: 04 May 2016 Jurisdiction: Equity - Technology and Construction List Before: McDougall J Decision: Plaintiffs to pay second defendant's costs on the ordinary basis up to and including 1 February 2016 and on the indemnity basis thereafter. Catchwords: PROCEDURE — costs — order sought for costs on indemnity basis by second defendant – where offer of compromise not accepted by unsuccessful plaintiffs – whether offer allowed reasonable time for acceptance – whether in circumstances Court ought "otherwise order" – order made Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Jones v Dunkel (1959) 101 CLR 298 Category: Costs Parties: Thiess Pty Ltd (First Plaintiff) Hunter Valley Earthmoving Co Pty Ltd (Second Plaintiff) Dobbins Contracting Pty Ltd (First Defendant) Daryl Stuart Bate (Second Defendant) Representation: Counsel: A S Martin SC / A Zahra (Plaintiff) R A Cavanagh SC / S J Walsh (Second Defendant)

Solicitors: Carter Newell Lawyers (Plaintiffs) Thompson Cooper Lawyers Pty Ltd (Second Defendant) File Number(s): 2011/241122

Judgment 1. HIS HONOUR: The plaintiffs (there is no need to differentiate between them) sued the defendants for damages arising from the destruction by fire of an excavator used for coal mining operations. The plaintiffs' claim against the first defendant was resolved at a mediation conducted on 27 January 2016; orders were made the following day. The plaintiffs' claim against the second defendant (Mr Bate) went to trial. After ten days of hearing commencing on 8 February 2016, I concluded, for reasons given on 17 March 2016 ([2016] NSWSC 265), that the plaintiffs' claim against Mr Bate failed. 2. It is common ground between the plaintiffs and Mr Bate that, as I ordered on 17 March 2016, the plaintiffs should pay Mr Bate's costs. However, pursuant to leave that I reserved, Mr Bate seeks a special order for costs. He relies on an offer of compromise, alternatively a Calderbank offer, made on 1 February 2016. In those offers, Mr Bate offered to settle effectively on the basis that there be judgment in his favour and that there be no order as to costs. 3. It appears to be non-contentious, and in any event is hardly surprising having regard to the issues in the proceedings, that by 1 February 2016, Mr Bate had incurred substantial costs. They were said to be of the order of $550,000.00. The plaintiffs accept, in those circumstances, that Mr Bate has bettered his offer. They accept also that, save as to the time limited for acceptance, the offer of compromise complied with the formal requirements of UCPR r 20.26.