Harris v Morabito Holdings Pty Limited [2018] NSWSC 1353

Supreme Court New South Wales

Medium Neutral Citation: Harris v Morabito Holdings Pty Limited [2018] NSWSC 1353 Hearing dates: 30/08/2018 Date of orders: 30 August 2018 Decision date: 30 August 2018 Jurisdiction: Equity - Technology and Construction List Before: McDougall J Decision: Defendant to pay 80% of the plaintiff's costs assessed on the ordinary basis. Plaintiffs to have interest on costs. Parties to bring in draft orders. Catchwords: COSTS – home building dispute – owners awarded damages of $400,000 against claim of $1.6 million – whether commencement and continuation of proceedings in Supreme Court warranted – matter must be judged prospectively – whether costs should be reduced on account of either the conduct of the owners' expert or proportion of success achieved – where owners succeeded in each category of defects alleged but did not persuade referee as to the consequent quantum – owners were required to go to court to vindicate rights – hearing was extended as a result of the inflated claim – impossibility of scientifically assessing costs in these circumstances – broad brush of justice indicates that owners should have 80% of their costs.

COSTS – application for indemnity costs – Calderbank offer sent from owners to builder – offer sent at a time when builder could not properly assess the offer – not unreasonable for builder to reject offer. Legislation Cited: Civil Procedure Act 2005 (NSW) Home Building Act 1989 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: A & P Parkes Constructions v Como Hotel Holdings [2004] NSWSC 792 Calderbank v Calderbank [1976] Fam 93 Harris v Morabito Holdings [2018] NSWSC 912 Lahoud v Lahoud [2006] NSWSC 126 Category: Costs Parties: Anne Harris as executor of the estate of the late Arthur Harris (First Plaintiff) Anne Harris (Second Plaintiff) Morabito Holdings Pty Ltd t/as Marc Morabito Constructions (Defendant) Representation: Counsel: P J Bambagiotti (Plaintiffs) L Shipway (Defendant)