Maea v Acciona Infrastructure Australia Pty Ltd

Before: Harrison CJ at CL

Decision: There should be no order as to the costs of the cross-defendant on the defendant’s motions.

Catchwords: COSTS – party/party – costs orders in interlocutory proceedings – where cross-defendant seeks previous costs order made on the notice of motion be varied – whether defendant should pay cross defendant’s costs – whether defendant’s notice of motion went primarily to the issues on the cross-claim – where cross-defendant filed no evidence nor provided written submissions on the notice of motion – where cross-defendant’s appearance could have been mentioned by plaintiff – where no orders were made against cross-defendant

Cases Cited: Maea v Acciona Infrastructure Australia Pty Ltd [2025] NSWSC 567

Category: Costs

Parties: Siosaia Maea (Plaintiff/Respondent)
Acciona Infrastructure Australia Pty Ltd (Defendant/Cross-Claimant/Applicant)
Bleasdale National Personnel Pty Ltd ATF Lindales Personnel Australasia Unit Trust t/a
Bleasdale National Contractors (Cross-Defendant)

Representation: Counsel:
M Best (Plaintiff/Respondent)
I Griscti (Defendant/Cross-Claimant/Applicant)
O J Dinkha (Cross-Defendant)
Solicitors:
Beilby Poulden Costello (Plaintiff/Respondent)
Barry Nilsson (Defendant/Cross-Claimant/Applicant)
Turks Legal (Cross-Defendant)

File Number(s): 2022/16236

Publication restriction: Nil

JUDGMENT

1. HIS HONOUR: On 3 June 2025, I made orders in respect of two notices of motion filed by the defendant: see Maea v Acciona Infrastructure Australia Pty Ltd [2025] NSWSC 567. I ordered, among other things, that the defendant pay the plaintiff’s costs of and incidental to the motions but that there be no order as to the costs of the cross-defendant. The cross-defendant has now asked that I re-consider that ruling and made the following submissions.

2. First, it emphasised that, as submitted by the defendant at the hearing of the motion, the lay witness statement and the expert liability report which were the subject of the defendant’s application went primarily to issues on the cross-claim. The cross-defendant was a party “squarely affected by the notice of motion filed on 1 May 2025” and as such appeared at the hearing and took a position in respect of it: the cross-defendant joined with the plaintiff in opposing the defendant’s prayers for leave relating to the lay witness statement and the expert liability report.

3. Secondly, whilst the defendant succeeded on one of the issues relating to the lay witness statement, the conduct that necessitated the notice of motion dated 1 May 2025 in the first place and the procedural history punctuated by its delay, should mean that the defendant be required to pay the costs of the cross-defendant of that motion as well.

4. I do not accept, despite the defendant’s submission to that effect, that the defendant’s application went primarily to issues on the cross-claim. The defendant was attempting to inculpate the cross-defendant in order to avoid its own liability at the suit of the plaintiff. Establishing that the cross-defendant bore the sole or primary responsibility for Mr Maea’s injuries was as much about defending his claim as it was about securing contribution or indemnity from a joint tortfeasor.

5. The cross-defendant neither filed any evidence on the motions nor provided written submissions. It was content to rely upon the plaintiff’s conduct of the interlocutory proceedings as any reduction in the strength of the defendant’s position with respect to the plaintiff’s claim against it correspondingly strengthened the cross-defendant’s position on the cross claim. No interlocutory orders were sought by either the plaintiff or the defendant against the cross defendant. Its position would have been entirely and adequately protected by requesting the plaintiff to mention its appearance and that it supported the plaintiff’s opposition to the motions.

6. The cross-defendant would not have been at any risk by taking such a course without appearing. The outcome of the motion did not adversely affect the cross-defendant in the sense that any orders were made against it.

7. My decision that there should be no order as to the costs of the cross-defendant on the defendant’s motions should stand.

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