The New South Wales Netball Association Ltd v Probuild Construction (Aust) Pty Ltd [2015] NSWSC 1401 (23 September 2015)

Last Updated: 23 September 2015

Supreme Court New South Wales

Case Name:	The New South Wales Netball Association Ltd v Probuild Construction (Aust) Pty Ltd
Medium Neutral Citation:	[2015] NSWSC 1401
Hearing Date(s):	On the papers; submissions received 16 and 21 September 2015
Decision Date:	23 September 2015
Jurisdiction:	Equity - Technology and Construction List
Before:	Stevenson J
Decision:	Each party to pay its own costs; parties to send short minutes which reflect these reasons, and those of 11 September 2015.
Catchwords:	COSTS – defendant successful but on opposite basis to that originally advanced; plaintiff also abandoned position originally maintained – whether reason shown why costs should not follow the event – whether any basis to award indemnity costs
Legislation Cited:	Building and Construction Industry Security of Payment Act 1999 (NSW)
Cases Cited:	The New South Wales Netball Association Ltd v Probuild Construction (Aust) Pty Ltd [2015] NSWSC 1339 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72
Category:	Costs
Parties:	The New South Wales Netball Association Ltd (Plaintiff) Probuild Constructions (Aust) Pty Ltd (First Defendant) Helen Durham (Second Defendant)
Representation:	Counsel: D T Miller SC with M J Smith (Plaintiff) M Christie SC with D Hume (First Defendant) Solicitors: Sparke Helmore Lawyers (Plaintiff) Thomson Geer Lawyers (First Defendant)
File Number(s):	SC 2015/98613

JUDGMENT

1. I published my reasons in this matter on 11 September 2015: The New South Wales Netball Association Ltd v Probuild Construction (Aust) Pty Ltd [2015] NSWSC 1339. I will use the same abbreviations in these reasons as I did in that judgment.
2. In my judgment of 11 September 2015, I concluded that the service by Probuild of Payment Claim 24 contravened s 13(5) of the Act and was therefore invalid. Despite the volte face of Probuild (as described at [28] of my reasons), and my conclusion that Probuild had opportunistically approbated and reprobated (see [39] and [40]), I ultimately concluded that, principally for the reasons set out at [47] to [52], I should grant Probuild the prerogative relief it sought.
3. I also rejected Netball’s case for damages (at [55] to [66]).
4. I invited the parties to bring in short minutes to give effect to my reasons and said that I would hear the parties as to costs. I sought submissions as to why Probuild should not pay Netball’s costs of the proceedings, on an indemnity basis, despite its success in obtaining the relief it sought.
5. I have now received written submissions from both parties. The parties agree that I should determine the question of costs on the papers.
6. As Probuild submits, it has been successful on all issues. It has obtained the relief that, ultimately, it sought and has resisted Netball’s cross-claim for damages.
7. However, it has not obtained the relief it originally sought in the proceedings. Originally, it contended that Progress Claim 24 was valid, and that any determination in respect of it would also be valid. Once it knew the result of the Determination (in effect, a loss from its point of view), it adopted the opposite position and contended that Payment Claim 24 was invalid and the Determination void.
8. I see that conduct as a reason that costs should not necessarily follow the event.
9. On the other hand, when these proceedings commenced, Netball contended that Payment Claim 24 was invalid and that any determination based upon it would be void. Following the Determination (which was, in effect, a victory from its point of view) it discontinued that claim; no doubt because it was then happy to embrace the Determination, which resolved the issue in respect of Payment Claim 24 substantially in its favour.
10. As I said at [3] of my reasons of 11 September 2015, both parties correctly accused the other of opportunism.
11. However, I am not persuaded that the conduct of either party (and Probuild in particular) should be described as “misconduct” in the sense discussed by McHugh J in Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [69].
12. Having carefully considered the parties’ submissions, I have concluded that my preliminary view, reflected at [4] above, was not correct. In my opinion, in the events that have happened, the fair result is that the chips should lie as they have fallen, and that there should be no order as to costs.
13. The parties should now send to my Associate short minutes which reflect these reasons and those of 11 September 2015.

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