CPB Contractors Pty Ltd v Rizzani De Eccher Australia Pty Ltd (No 2) [2018] NSWSC 74

Supreme Court New South Wales

Medium Neutral Citation: CPB Contractors Pty Ltd v Rizzani De Eccher Australia Pty Ltd (No 2) [2018] NSWSC 74 Hearing dates: On the papers Date of orders: 09 February 2018 Decision date: 09 February 2018 Before: Ward CJ in Eq Decision: 1. The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis. Catchwords: COSTS - Party/Party – Urgent proceedings – where plaintiff did not succeed in obtaining the relief sought, but obtained other relief Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 98 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: CPB Contractors Pty Ltd v Rizzani de Eccher Australia Pty Ltd [2017] NSWSC 1798 Category: Costs Parties: CPB Contractors Pty Ltd (Plaintiff) Rizzani de Eccher Australia Pty Ltd (Defendant) Representation: Counsel: N Nicholls SC with H Morrison (Plaintiff) F Hicks SC with D Robertson (Defendant)

Solicitors: Corrs Chambers Westgarth (Plaintiff) Clayton Utz (Defendant) File Number(s): 2017/00332074 Publication restriction: Nil

Judgment 1. HER HONOUR: On 19 December 2017, I published my reasons (CPB Contractors Pty Ltd v Rizzani de Eccher Australia Pty Ltd [2017] NSWSC 1798) in a dispute between parties to an unincorporated joint venture for the undertaking of design and construction works in connection with the widening of the M4 Motorway in Sydney, namely as to whether the defendant (Rizzani de Eccher Australia Pty Ltd – "RdE") was bound to pay a Called Sum of $8.5m for the purposes of the joint venture (the Called Sum Dispute). 2. I dismissed RdE's notice of motion seeking a stay of the proceedings by reference to an arbitration clause in the parties' joint venture agreement (the Stay Dispute) and, having found that RdE was estopped in all the circumstances from acting inconsistently with its promise to do so, ordered RdE to sign a written resolution of the Joint Venture Board ("JV Board") for the payment of the Called Sum. However, I declined to grant the further relief sought by the plaintiff, CPB Contractors Pty Ltd ("CPB") (namely, declaratory relief and a mandatory injunction as to the payment of the Called Sum). I made directions for brief written submissions on costs to be filed with a view to determining the issue of costs on the papers. 3. The parties have now filed, and I have had an opportunity to consider, submissions as to costs. These are my reasons for the costs order that I will now make. I do not propose to repeat the background to the dispute which is set out in my earlier reasons. 4. CPB argues that the appropriate order for costs is that RdE should pay CPB's costs of the proceedings on the ordinary basis. RdE submits that there should be no order as to costs, such that the parties bear their own costs of the proceeding, or alternatively that RdE should pay 50% (or less) of CPB's costs of the proceedings.