Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In liquidation) (No 2) [2019] NSWCA 64

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In liquidation) (No 2) [2019] NSWCA 64 Hearing dates: 29 and 30 October 2018 Decision date: 12 April 2019 Before: Leeming JA, Payne JA, White JA, Sackville AJA, Emmett AJA Decision: 1. Appeal allowed in part. 2. Cross-appeal allowed in part. 3. Set aside orders 5, 6, 7, 8 and 10 of the orders made on 2 May 2018, and in lieu thereof make the following orders: (a) an order in the nature of certiorari issue quashing the determination of the Second Defendant dated 1 November 2017; (b) there be judgment, pursuant to s 16(2)(a)(i) of the Building and Construction Industry Security of Payment Act 1999 (NSW), for Ostwald Bros Pty Ltd (in liq) (Ostwald) against Seymour Whyte Constructions Pty Ltd (Seymour) in an amount of $2,505,237.58 plus interest, at the rates prescribed under section 101 of the Civil Procedure Act 2005 (NSW) on and from 19 August 2017 until the date of these orders. The Court notes the undertaking given by Ostwald not to take steps for the enforcement of any judgment which this Court may make or sought in the Amended Cross-Appeal, without first giving 14 days' notice to Seymour. 4. Seymour is to pay 25 per cent of Ostwald's costs of the proceedings in the Equity Division. 5. Seymour is to pay one third of Ostwald's costs of the appeal and cross-appeal. Catchwords: COSTS – each side having partial success at trial and on appeal – order for partial costs warranted. Legislation Cited: Constitution, s 109