Solicitors:
Minter Ellison (Plaintiff/Applicant)
Baker McKenzie (First and Second Defendants/Respondents)
Colin Biggers & Paisley (Third Defendant/Respondent)
Moray & Agnew (Fourth Defendant/Respondent)
Lander & Rogers (Fifth Defendant/Respondent)
Carter Newell Lawyers (Sixth Defendant/Respondent)
Gadens Lawyers (Seventh Defendant/Respondent)
Clyde & Co Australia (Eighth Defendant/Respondent)
Mills Oakley (Ninth Defendant/Respondent)
File Number(s): 2019/401010
[2]
JUDGMENT
The background to this matter is set out in my reasons of 18 April 2023 [1] and 24 August 2023. [2]
The plaintiff, The University of Sydney, brings these proceedings against the defendants in relation to allegedly defective building work in the Charles Perkins Centre at the University's Sydney campus.
The Charles Perkins Centre was constructed between December 2011 and December 2013.
There are nine defendants, including the builder, Multiplex Constructions Pty Ltd, and its guarantor, Brookfield Australia Investments Ltd (the first and second defendants). The other defendants are subcontractors and consultants engaged by Multiplex in relation to the project.
On 11 November 2022, the University filed a Notice of Motion seeking leave to file a Second Further Amended Technology and Construction List Statement. The first proposed iteration of the Amended List Statement added two alleged defects that the parties have referred to as the Alleged Sandstone Defect and the Alleged Thermal Insulation Defect. In its Notice of Motion, the University also sought pre-evidence discovery in relation to those alleged defects.
The University was ultimately given leave on 8 September 2023 to file a Second Further Amended Technology and Construction List Statement. This was the sixth iteration of the University's proposed amended List Statement following its filing of its motion on 11 November 2022.
In the meantime, I had delivered the two judgments to which I have referred. Those judgments dealt with the particular issues which arose in relation to the University's proposed case as against the sixth defendant, McKenzie Group Consulting (NSW) Pty Ltd.
On 8 September 2023, I ordered that the University pay the sixth defendant's costs of the University's motion of 11 November 2022, including the costs of the hearings which took place on 13 April and 22 August 2023.
On 8 September 2023, I also:
1. ordered that the University pay the remaining defendants' costs thrown away by its proposal to amend its Further Amended List Statement and ordered that such costs were to include the costs of filing of any Further Amended List Response; and
2. made directions for the remaining defendants to put on submissions as to what, if any, further costs order should be made in their favour.
Those submissions, and the University's submissions in reply, are now to hand. It is agreed that I may deal with the question on the papers.
The University circulated its first proposed Amended List Statement on 24 November 2022. As I have said, that proposed List Statement included allegations concerning the Alleged Sandstone Defect and the Alleged Thermal Insulation Defect.
These were alleged defects of which the University became aware after the commencement of these proceedings. The University sought information from the Multiplex parties concerning these matters and sought informal resolution of those matters. Those attempts were not successful, thus leading to the University's proposal to amend its List Statement to include allegations connected with them.
The University circulated five further proposed iterations of its amended List Statement. These included a fourth version circulated on or about 9 June 2023, in which it abandoned the Alleged Sandstone Defect, and a fifth version circulated on or about 18 August 2023, in which it abandoned the Alleged Thermal Insulation Defect.
The University's application for pre-evidence disclosure relating to those alleged defects has also been abandoned.
In those circumstances, each of the defendants other than the sixth defendant (that already has its costs of the motion) and the ninth defendant (which is content for there to be no order as to the costs of the University's motion) now seeks an order that the University pay its costs incurred in relation to the University's motion of 11 November 2022.
The University accepts that the starting point is that a successful applicant for leave to amend should pay the "unsuccessful respondents' costs, the amendment being an indulgence granted by the Court, the costs associated with which could have been avoided had the applicant got the pleading right or complete in the first place". [3]
The Court, of course, may depart from that ordinary position, including where respondents to an amendment application have acted unreasonably or, as the University contends to be the position here, where the applicant for amendment could not reasonably have known of the matters the subject of the amendment until after proceedings had commenced; and therefore could not reasonably have been expected to get its "pleading right in the first place".
Here, the position is that the University had proposed to introduce new allegations concerning the Alleged Sandstone Defect and Alleged Thermal Insulation Defect and has now abandoned those proposed amendments.
In those circumstances, I am not able to conclude that the defendants' resistance of the application to amend was unreasonable, nor that they have unreasonably incurred costs in resisting the amendment.
However, I do not consider that it would be reasonable that the University pay such costs as any of the defendants may have incurred in actually preparing to meet the University's now abandoned claims in respect of the Alleged Sandstone Defect and Alleged Thermal Insulation Defect; nor any costs any defendant has incurred in actually preparing to give the pre-evidence disclosure sought, but not abandoned. That is because it was not reasonable for those defendants to start incurring such costs until such time as it was known whether the University would be given leave to make those amendments or be given such disclosure.
I make the following orders:
1. As between the plaintiff and the ninth defendant, there is to be no order in respect of the plaintiff's Notice of Motion filed 11 November 2022, to the extent that the plaintiff and the ninth defendant pay their own costs of the motion.
2. As between the plaintiff and the first, second, third, fourth, fifth, seventh and eighth defendants, I order that the plaintiff pay those defendants' costs incurred in relation to the plaintiff's Notice of Motion filed 11 November 2022, but excluding the costs incurred by any of those defendants in preparing evidence to meet the plaintiff's Alleged Sandstone Defect and Alleged Thermal Insulation Defect claims, or any costs incurred in preparing to give pre-evidence disclosure of documents in relation to either of those claims.
[3]
Endnotes
The University of Sydney v Multiplex Constructions Pty Ltd [2023] NSWSC 383.
The University of Sydney v Multiplex Constructions Pty Ltd (No 2) [2023] NSWSC 1019.
Chahwan v Euphoric Pty Ltd trading as Clay & Michael & anor [2009] NSWSC 805 at [43] (Brereton J, as his Honour then was).
[4]
Amendments
14 November 2023 - Amendment to Representation field on coversheet
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Decision last updated: 14 November 2023