ABB Engineering Construction Pty Limited v Abigroup Contractors Pty Limited - [2003] NSWSC 867 - NSWSC 2003 case summary — Zoe

NSWNSWSC

ABB Engineering Construction Pty Limited v Abigroup Contractors Pty Limited

[2003] NSWSC 867

Supreme Court of NSW|2003-09-24|Before: Einstein J, Kirby P

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2003-09-24

Before

Einstein J, Kirby P

Source

Original judgment source is linked above.

Judgment (105 paragraphs)

[1]

CITATION : ABB Engineering Construction Pty Limited v Abigroup Contractors Pty Limited [2003] NSWSC 867 HEARING DATE(S) : 12/09/03, 16/09/03 (further submissions) JUDGMENT DATE : 24 September 2003

[2]

JURISDICTION: Equity Division Technology and Construction List JUDGMENT OF : Einstein J DECISION : Short minutes to be brought in.

[3]

CATCHWORDS : Principles - Interest - Costs - Judgment for causes of action abandoned LEGISLATION CITED : Supreme Court Act Supreme Court Rules Abigroup v Peninsula (No 2) [2001] NSWSC 1016 Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 Australian Trade Commission v Disktravel [2000] FCA 62 Bennett v Jones [1977] 2 NSWLR 355 BP Exploration Co (Libya) Ltd v Hunt (No 2) [1983] 2 AC 352 Ciavarella v Balmer (1983) 153 CLR 438 Council of the City of Sydney v Woodward [2000] NSWCA 201 Cretazzo v Lombardi (1975) 13 SASR 4 Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 Doric Products Pty Ltd v Lockwood Security Products Pty Ltd [2002] FCA 282 Falkner v Bourke (1990) 19 NSWLR 574 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 Heckenberg v Delaforce (No. 2) [2000] NSWCA 254 CASES CITED : HomeOwners Insurance Pty Ltd v Job (1983) 2 ANZ Ins Cas 60-535 Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748 LMI v Baulderstone (No.2) [2002] NSWSC 72 Madden as Official Liquidator of Aquanaut Constructions Pty Ltd (in liq) [2001] NSWSC 1051 Mobile Innovations Ltd v Vodafone Pacific Ltd [2003] NSWSC 423 NRMA Ltd v Morgan (No 3) [1999] NSWSC 768 Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (No 2) [2002] FCA 967 Oshlack v Richmond River Council (1998) 193 CLR 72 Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 Renard Constructions (ME) Pty Limited v Minister for Public Works (1992) 26 NSWLR 234 Smeaton Hanscomb & Co Ltd v Sassoon I Setty Son & Co (No 2) [1953] 1 WLR 1481 Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201 United Australia Limited v Barclays Bank Limited [1941] AC 1 Waters v PC Henderson (Aust) Pty Ltd ( Kirby P, Mahoney and Priestley JJA, New South Wales Court of Appeal, 6 July 1994, unreported) PARTIES : ABB Engineering Construction Pty Limited (Plaintiffs) Abigroup Contractors Pty Limited (Defendant) FILE NUMBER(S) : SC 55033/98 COUNSEL : Mr M Orlov (Plaintiff) Mr F Corsaro SC (Defendant) SOLICITORS : Abbott Tout (Plaintiff) Clayton Utz (Defendant)

[18]

94 As the submission said, the trial judge's decision to award interest as he did was a discretionary decision. According to traditional thinking, it can therefore only be attacked if the Council demonstrates an error of law, an error of fact, a failure to consider a relevant matter, a consideration of some irrelevant matter, or a result so unjust as to suggest that one of those vitiating errors must have occurred even though it cannot be specifically identified. The result arrived at by the trial judge is not so unjust as of itself to suggest one of the vitiating errors. Nor does the reasoning reveal any of them. The seven causes of action each arose when work terminated on each particular design, because at that time the Council had received a benefit - progress work on a design - which it accepted in asking the plaintiff to desist and commence a fresh one in all cases except the last, where it asked the plaintiff to desist and accepted that his work would have to be paid for. So far as the Council submitted that where services are performed over a lengthy period, payment is usually made only after a demand, it does not follow that the statutory entitlement to interest should as a matter of discretion not commence until then ; in any event it was common ground between the plaintiff and the Council from September 1996 that the Council was obliged to pay the plaintiff something. So far as the Council submitted that where payment is to be made under a contract which did not stipulate a time for payment, it would be done a reasonable time after the contract had been performed, that marks an accrual of a cause of action later than the time at which the plaintiff's causes of action accrued. So far as the Council submitted that a delay in making a demand is relevant in assessing a reasonable time for payment, particularly when the sum demanded was not earlier known to the defendant, the submission is sound, and it is also the case that such a delay is relevant to the s 94 discretion , but the delays here are not so clearly lengthy as to invalidate the trial judge's conclusion. As for BP Exploration Co (Libya) Ltd v Hunt (No 2) [1983] 2 AC 352, the reason why Robert Goff J selected 14 June 1974 was that "it was on that date that Hunt first became fully aware of BP's intention to bring a claim against him": at 374. The Council should have been aware, and was aware, from September 1996 that the plaintiff required further monies; all it was ignorant about was how much. In oral argument the Council said interest should not run from any time before which the plaintiff's claim was not certain. However, it is commonplace for defendants sued for unliquidated damages, compensation or other money remedy to be ordered to pay interest from a time long before any certain claim was made. 7 A reasonable and appropriate approach to the exercise of the Court's discretion is for interest to run from the later of the date on which ABB commenced these proceedings, namely 6 August 1998, and the date on which particular items of expenditure that ABB incurred in connection with the work were booked to the project, as recorded in ABB's contemporaneous Jobpac cost records (Harrowell, paragraphs 7, 10).

[19]

8 Abigroup received the benefit which it accepted as and when ABB did the work. This was occurring progressively from the date on which ABB commenced work in late February 1998. 9 ABB's entitlement to payment of a reasonable remuneration continued to accrue on and after 6 August 1998 as and when work was done and the benefit of that work was accepted by Abigroup. I accept that there was no need for ABB to make fresh claims for payment because a right of payment had been claimed in the proceedings commenced on 6 August 1998. 10 Against the background set out in ABB's written submissions [set out above] and the background of its claims for payment I accept that the adoption of 6 August 1998 as the earliest date from which interest should run is conservative. 11 There is no substance in Abigroup's submission that in some instances interest was claimed where work was performed after an expense relating to that work was posted. Mr Orlov dealt with this suggestion as follows: My learned friend's submission appeared to be an elaboration of something which appeared in the written submissions…the complaint…that was made in the defendant's written submissions was that costs continued to be incurred after the date of the commencement of the proceedings and, indeed, some point was made in fact that costs continued to be booked to the job until August 1999, which was obviously well after the work had been completed, and some point appeared to be made in relation to that in the defendant's written submissions. That really related to the issue of the booking of costs, not the proposition that costs were being booked to the job before they were actually being incurred. The answer to that issue lay in Mr Halliwell's affidavit, which made clear that, firstly as a result of the work that Mr Radcliffe did, and Mr Radcliffe was the plaintiff's expert, all of those costs which appeared in ABB's primary cost record were reversed out; and, secondly, as a result of the referee's findings and some decisions that the referee made, there were some further adjustments to these costs, with the result that the only costs that were allowed that were booked to the job and had been incurred after 14 October 1999 were particular costs which had been the subject of specific debate between the experts and had been expressly ruled upon by the referee in the report. So that the costs upon which interest has been calculated are those costs properly incurred, whether they were incurred before 14 October or after 14 October.

[24]

4 Detailed submissions were received from both parties in relation to costs. There was substantial agreement in terms of the appropriate principles. In that regard, but with one exception, Vodafone accepted the following statement of principle to be found in the written submissions of Mobile: · Costs are in the discretion of the Court which has full power to determine by whom and to what extent costs are to be paid: s76(1) Supreme Court Act 1970. · The powers and discretions of the Court under s76 are to be exercised in accordance with SCR 52A: SCR 52A rule 4. · If the Court makes an order as to costs, the Court shall order that costs follow the event except where it appears to the Court that some other order should be made as to the whole or any part of the costs: SCR 52A rule 11. · Thus, the starting point is that plaintiff, having been successful, is entitled to its costs. It is for the defendants to establish a basis for departing from that rule. · It is certainly the case that a successful party who has failed on certain issues may not only be deprived of their costs on those issues but may be ordered as well to pay the other party's costs of them Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748 at 48,136. · Notwithstanding that the Court has power to deprive a successful party of costs, or even order a successful party to pay costs, that is a course to be taken in unusual cases and with a degree of hesitancy. For example: (a) Cretazzo v Lombardi (1975) 13 SASR 4 at 16 (Jacobs J): "But trials occur daily in which the party, who in the end is wholly or substantially successful, nevertheless fails along the way on particular issues of fact or law. The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case. ... I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded, based merely on his success in those particular issues." (b) Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 (Gummow, French and Hill JJ): "The propositions enunciated in [ Hughes ] are subject to the further consideration that justice may not be served if parties are dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case: Cretazzo ... at 12. In Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201, Fisher J regarded the discretion to apportion costs as one to be exercised only in the most exceptional circumstances. Nevertheless he accepted that where a considerable part of the trial is taken up in determining issues upon which a party fails, it is a proper exercise of the discretion to reduce the costs allowed to that party." (c) Waters v PC Henderson (Aust) Pty Ltd (unreported, CA(NSW), Kirby, Mahoney and Priestley JJA, 40678/91, 6 July 1994) (per Mahoney JA): "Where the proceedings involve multiple issues the application of the rule that costs follow the event may involve hardship where a party succeeds on some issues and yet fails on others. Particularly is this so where, for example, a defendant succeeds on issues that occupied the bulk of the time taken by the proceedings. Nevertheless unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those in which it failed." (d) NRMA Ltd v Morgan (No 3) [1999] NSWSC 768 (Giles J): "Principles according to which some other order may be made are fairly well established. If a party fails on some issues, the circumstances may make it reasonable that he be deprived of the costs of those issues, or even be ordered to pay the other party's costs of those issues. For this purpose, issues may be issues in a pleading sense of bases of claim, or may be disputed questions of fact or law. But it must be remembered that parties should not be dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case, and unless a particular issue or group of issues is clearly dominant or separable from the balance of the proceedings it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between the issues on which he was successful and those on which he failed. It is sufficient to refer to Cretazzo v Lombardi (1975) 13 SASR 4 at 12; Hughes v Western Australian Cricket Association (1986) ATPR 40-748 at 48,136; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 271-2; and Waters v P C Henderson (Australia) Pty Ltd (NSWCA, 6 July 1994, unreported). (e) Doric Products Pty Ltd v Lockwood Security Products Pty Ltd [2002] FCA 282 (Hely J): "The courts have cautioned against too ready a resort to apportionment according to issue based outcomes. See, eg, Australian Trade Commission v Disktravel [2000] FCA 62. Justice may not be served if the parties are dissuaded by the risks of costs from canvassing all issues which might be material to the decision in the case: Cretazzo v Lombardi (1975) 13 SASR 4 at 16". · A recent application of the principle was by Barrett J in LMI v Baulderstone (No.2) [2002] NSWSC 72. In that case two plainly discrete claims were made by the plaintiff - a minor claim upon which the plaintiff was successful and the dominant claim upon which the defendant succeeded. His Honour considered the claims "were so separate and disassociated (although involving common witnesses) that I think they should be treated, for costs purposes, as if they had been the subject of separate trials". · Where the principle is applied it is generally not appropriate to order that costs be paid in respect of particular issues because "that would create a degree of artificiality, and would impose an extraordinarily difficult task upon any registrar faced with the need to tax costs, in default of agreement": Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (No 2) [2002] FCA 967 (Weinberg J). · Rather it is generally appropriate simply to apportion costs [SCR 52A rule 6(2)(a)] on the basis of "impression and evaluation: Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272; LMI at paragraph 36. Mathematical precision is not required and the court will not attempt to be too technical or exacting in seeking to allocate costs: Dodds Family Investments at 272; NRMA Ltd v Morgan (No 3) [1999] NSWSC 768 (Giles J) at paragraph 25; Madden as Official Liquidator of Aquanaut Constructions Pty Ltd (in liq) [2001] NSWSC 1051 (Hamilton J) at paragraph 3; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22. Relevant factors include the relative time devoted to evidence and submissions on the competing issues: Hughes at 48-136; Waters at 5; Fexuto at 22-25; NRMA at paragraphs 31-47 and the relative success of the party in terms of its original claim: Abigroup v Peninsula (No 2) [2001] NSWSC 1016 (13 November 2001) at paragraphs 36-40; LMI at paragraphs 41-47.

[30]

7 Ultimately, the matter is one for the Court's discretion to ensure that the power given in s76 and Part 52A r11 is exercised justly. 15 In Mobile Innovations, Vodafone took exception to the proposition that the principle was properly expressed in the sentence "Notwithstanding that the Court has power to deprive a successful party of costs, or even order a successful party to pay costs, that is a course to be taken in unusual cases and with a degree of hesitancy." Vodafone had submitted, and I am certainly content to accept, that caution needs to be exercised in a 'multiple issues' case, in terms of awarding the successful party all of its costs, where it has failed on a number of discrete issues, less an injustice be perpetrated against the unsuccessful party. [(cf Fexuto v Bosnjak Holdings (No 3) (1998) 30 ACSR 20 per Young J)]. The circumstances by reference to which the Court's discretion falls to be exercised 16 A deal of the general background concerning and scale of the reference is to be found shortly summarised in the 30 July 2003 judgment. The report of the referee is of course the appropriate place in which to find a proper and carefully laid out summary of the issues pleaded and litigated, of the stances taken by the parties from time to time, of the decisions both as to principle and findings of fact and of the reasons for those decisions. 17 The report of some 900 pages is part of the record. It is obviously inappropriate to now set out large sections from the report. Suffice it to say that during the course of the argument leading to the 30 July 2003 judgment I had occasion to travel through a number of sections of the Report in order to deal with the matters which were in issue on the adoption/rejection of the Report applications which were then before the Court. 18 Further and in order that the Court should be fully informed as to the manner in which the Reference hearing proceeded, as to the changing stances in pleadings and as to the precise reasons why each of the parties now so strongly presses its preferred approach in respect to costs, a full -day was set aside for the taking of oral submissions complementary to the earlier and detailed written submissions. The whole of the oral submissions were transcribed and form a convenient record of precisely how the matters were addressed, including the courts comments on many parameters of the approaches put by each party, tied back to relevant principle, and often to why a matter was pleaded or abandoned, and as to what effect a particular stance was said to have had upon the forensic approach to the adducing of evidence. 19 The plaintiff being the successful litigant should, all other things being equal, be entitled to an award of costs. This should follow from the "usual order as to costs", embodying the principle to which McHugh J referred in Oshlack. More than anything the approach taken by the litigants to the reference may be likened to a war. Leaving aside for the moment, the question of those areas where the plaintiff elected to abandon its claims, it seems that almost every point was taken which could have been taken by either litigant. 20 Clearly the Court should be astute to carefully examine such reasons as may be put forward as to why the proper exercise of the Court's discretion should not be for the successful litigant, here the plaintiff, to have its costs. I am able to indicate immediately that such reasons as the defendant sought to put forward, do not warrant any departure from the usual order as to costs. 21 Even in advance of summarising the respective submissions put by the parties it is appropriate to note that notwithstanding that the plaintiff on day 151 of the Reference and after the conclusion of the hearing before the Referee, indicated that it was not proceeding with but was abandoning particular claims which it had made in the Second Further Amended Summons [on the alternative basis that there was a contract], a thorough investigation by interrogation of counsel on the hearing of the instant application has entirely satisfied me that because of the way in which each side had pleaded and sought to litigate its respective case, it cannot be said that the abandoned claims meant that very much at all of the evidence which both sides adduced would not have had to be adduced in any event. The matter will be returned to be below. 22 In what follows, many of the plaintiff's written submissions are simply adopted. In particular I accept the following submissions as accurate summaries of the relevant landscape: · the issue initially raised by the plaintiff in its summons was the question whether or not there was a contract between the parties. Those proceedings were taken with a view to declaring the rights of the parties which were, at that time, still actively engaged in the construction of the MUA project. The position changed when the defendant terminated the plaintiff's involvement in the project on 14 October 1998. The litigation then evolved through successive amendments to the pleadings by both parties, which are summarised in the affidavit of Mr Harrowell, to include all of the parties' respective claims and cross claims depending upon whether or not it was found that they had entered into a contract;

[52]

In relation to the costs of the Reference (namely the fees of the Referee and the fees paid for the hire of the hearing room and the provision of the transcript of the evidence before the Referee), Abigroup submits that the Court order that such costs be shared equally by the parties on the same basis set out in paragraph 14 hereof. Holding 24 The proper exercise of the Court's discretion is to order that the defendant's pay the plaintiffs costs of the Reference. Notwithstanding the care with which each of the parties framed its pleadings the essential issue, albeit arising from a number of causes of action generally put by each party in the alternative, concerned the legal rights which the parties had in relation to the work done and materials supplied by the plaintiff for the benefit of the defendant. The fact that the plaintiff ultimately did not pursue some of its alternative claims which as a leg of a cause of action put as one alternative, depended upon the Referee finding that the parties had entered into a contract, does not, provide a proper basis for departing from the general rule that costs should follow the event. There is no basis upon which it can be concluded that the plaintiff acted unreasonably in pleading the claims and maintaining them at the hearing. The short position is that the parties each reacted to the stances taken by the other in protective forensic mode where contraposed positions were of the type often encountered in situations where high uncertainty prevails as to the correct legal analysis (so very dependent on the facts). 25 I further accept as correct and adopt the following submissions by ABB: · First, it was always open to the plaintiff to litigate a quantum meruit claim in the alternative to its damages claim for repudiation and to defer electing between the two remedies until the time for judgment. The course that the plaintiff adopted was no different in its effect. · Second, evidence that was relevant to issues that the plaintiff ultimately did not pursue was also relevant to other issues that remained to be decided. For example, evidence of the contract value of the work was relevant to the reasonableness of the remuneration claimed on a quantum meruit and to the valuation of the defendant's cross claim. Evidence relating to the progress of the works and the causes and extent of delay was relevant to the valuation of the plaintiff's quantum meruit claim, the defendant's Trade Practices Act case and to the valuation of the defendant's cross claim. · Third, some of the issues that were not pursued involved questions of argument only and had no bearing on the course of evidence or the length and cost of the hearing. 26 Each of those submissions were supported by carefully focused submissions which it seems to me are correct. Those submissions are as follows: The plaintiff's right to elect between inconsistent remedies

[80]

The matters in (e) and (f) were relevant generally to issues of delay to the works. Evidence relevant to those issues was also relevant to the plaintiff's quantum meruit claim, the Trade Practices Act claim and the defendant's cross claim for breach of contract . Evidence relevant to the plaintiff's extension of time claims also remained relevant to the plaintiff's repudiation case, although, as appears from the following passages of plaintiff's submissions to the Referee, it was necessary for the Referee to decide only that the plaintiff's extension of time claims were made bona fide: "794 For the purposes of this part of the case, it is not necessary to analyse or make findings on each of the contested issues of fact raised by ABB's extension of time claim. Nor is it necessary for the Referee to decide whether ABB had an entitlement to any extension of time and if so, what was that entitlement. The significance of the extension of time claim to the defendant's allegation that the plaintiff was guilty of repudiation, lies in the fact that by submitting a detailed and substantially particularised claim ABB was plainly taking its stand on the contract, if there was one. 795 There can be no doubt whatsoever that the claim was a bona fide claim which ABB took very seriously. There is a large body of direct evidence comprising contemporaneous written communications between the parties as well as evidence in the proceedings from Hardy, McDonnell and Martin among others, that establishes the truth of many of the statements and factual assertions made in the claim. It was not a claim that could ever be dismissed out of hand as spurious or as a deliberate attempt to flaunt the contract. It gave the appearance of being and was in fact sanctioned by the contract applied according to its terms in circumstances where there was considerable doubt as to what those terms were if there was a contract at all ". [See paragraphs 795 and 796 of Chapter 2 of the plaintiff's submissions to the Referee]

[100]

Fourthly, in the way in which the cross-claim was valued on each of the alternate bases, that valuation called into question the value of the work if ABB had completed it. This wasn't a matter that stood on fine questions of pleading; this was the way it was fought out between the experts, and it involved the defendant carrying the onus of proof on the question whether ABB was responsible for 70 per cent of the delay to the project.' [Transcript 12 September 2003 page 432 and 433] [emphasis added] 28 These submissions are accepted as a correct summary of the position. 29 In the result it may be seen that although at first blush the proposition that the plaintiff having pleaded albeit in the alternative, certain particular matters and having elected to abandon them following the adducing of the evidence, should likely bear the costs of and occasioned in relation to the litigating of those matters, this is not a case in which that result should follow. The question of progress on the job was integrally tied to the balance of the cases pursued by both parties. The mere fact that one subset of the plaintiff's evidence going to an assertion, if there had been a contract, of an entitlement to extensions of time under that contract, and that for example a programmer had given evidence to support this proposition, does not establish anything remotely like that for which the defendant contends presently. 30 Nor do I accept that the evidence given on affidavit by Mr Pudig on 28 August 2003 is conclusive and requires a finding that 49.7 percent of the time as referred to in his affidavit was spent in the proceedings in relation to issues abandoned by the plaintiff. The matter goes to weight. Mr Pudig is the solicitor for the defendant. He had the carriage of the matter from October 1998 until the present. He was permitted to express an opinion. This was that the defendant incurred great expense in having to consider and prepare evidence dealing with the additional claims and allegations made by the plaintiff in September 1999 and which additional claims and allegations the plaintiff ultimately abandoned in December 2001. He deposed as follows:

[101]

"In my opinion and having regard to my involvement in these proceedings, a vast majority of that expense would not have been incurred had ABB in fact never amended its summons in the manner indicated earlier in this affidavit but proceeded only with its "no contract" case." 31 The Court proceeds upon all of the evidence before it. The opinion should likely be regarded as an opinion of a lay witness, there being no evidence that the Code of Conduct required to be signed by a person put forward as a section 79 expert with requisite specialised knowledge has been signed by Mr Pudig. His opinion is no doubt a subjective assessment based upon his familiarity with the proceedings but it cannot be regarded as overtaking the Court's role which is to determine the costs application on the basis of all of the evidence before the Court. The evidence of Mr Pudig flies in the face of the references to Mr Hammond's evidence to be found in ABB's submissions to the referee on the Cross Claim [at pages 335 to 368 of Tab "S" to Mr Harrowell's Affidavit 10 September 2003]. Mr Pudig's evidence was inter alia to the effect that 100% of the time involved in the Tracey, Brunstrom and Hammond report on delays related to issues abandoned. This must be incorrect and reflects adversely upon the reliability of Mr Pudig's evidence. 32 The proper exercise of the course discretion is to make an order that costs follow the event. 33 In relation to the Abigroup application for judgment on matters abandoned by ABB and for costs in relation to those matters the proper exercise of the Court's discretion is to dismiss that application. And for the following reasons: · The decision in relation to costs of the proceedings appropriately takes into account the whole landscape comprising the course of the proceedings, only one parameter of which includes matters abandoned by ABB. · There is no utility as it seems to me in the Court at this stage, following the conclusion of the Reference and following the handing down of the reserved judgment on the adoption on 30 July 2003, now revisiting the manner in which the matter was treated by the parties and the Referee during the reference. There is no doubt but that the principles in Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 at 602 - 603 would be applicable to raise an estoppel where either of the parties to the proceedings might endeavour in other proceedings were to re-litigate a relevant issue litigated in those present proceedings. 34 The costs decision would be no different even had judgment been entered for Abigroup in relation to the abandoned claims. And that for reasons already given where it is simply inappropriate and in fact impossible for the Court in tunnel vision manner, to deal separately with the issues not ultimately pursued by the plaintiff. It is simply not possible to sever and quantify the extent, if any, to which issues ultimately abandoned could be said to have had a bearing on the course of the evidence or the length and cost of the hearing. The issues were simply to interwoven to make this exercise one which is appropriate. The fact is that the plaintiff succeeded and the defendant failed and the usual order as the costs must follow. As was put in Cretazzo v Lombardi supra: