I gave judgment in this matter on 6 October 2015: Wang v Kaymet Corporation Pty Ltd [2015] NSWSC 1459. In these reasons I shall adopt the same abbreviations I used in that judgment.
I concluded that the plaintiffs had failed to establish that the defendants were not entitled to rescind the contracts whereby the plaintiffs purchased residential apartments proposed to be constructed on the Site.
In particular, I concluded that the plaintiffs had not established that the defendants had failed to use their reasonable endeavours to register the draft Strata Documents by the various Dates for Registration. I concluded that the plaintiffs did establish that the development was delayed by reason of a want of reasonable endeavours on the defendants' part concerning a six week period between early November and late December 2010, but that that delay did not cause the defendants to fail to register the draft Strata Documents by the various Dates for Registration.
I invited submissions as to costs. The parties agreed that I should decide that issue on the papers.
The plaintiffs contend that the "true events" that caused the delay in the construction of the development were only revealed by the defendants during the course of the trial, particularly in the evidence given by Mr Derham and Mr Metlej in cross-examination.
Wang v Kaymet Corporation Pty Ltd [2015] NSWSC 1528 | Case summary | Zoe
The plaintiffs submit that "it was not until the eleventh hour the Defendants through the Court process, raised factual evidence of delay" and that "the results did not reflect the energies applied to preparation of the case by the Defendants".
The plaintiffs submit:
"Had the Defendants informed the Plaintiffs in a List Response or detailed Affidavits or in detailed correspondence of the delay issues, the Plaintiffs may have considered whether they pursued the action. The Affidavits of the Defendants were generalistic in nature and not specific, in circumstances where all knowledge was known to the Defendants".
In those circumstances, the plaintiffs submit that "it is appropriate to reduce the costs that the Defendants are able to recover" and that "an appropriate order is that the Defendants should only be entitled to recover 50% of their profit costs and disbursements on a party/party basis".
It is true that the defendants gave generalised evidence as to the reasons for delay which was, to a considerable extent, overtaken by the more detailed evidence that Mr Derham and Mr Metlej (in particular) gave in cross-examination.
However, as I explained in my reasons of 6 October 2015 (for example at [130]), that was in large part because of the manner in which those witnesses were cross-examined.
I am not prepared to speculate as to whether the plaintiffs would have "pursued the action" had the defendants adduced, in chief, the evidence that emerged in cross-examination. Overall, the plaintiffs have simply failed to make out their case and that, to a large extent, is because of how the case was conducted. I see no reason why costs should not follow the event.
The plaintiffs submit that, in any event, the defendants should not have costs associated with two of their experts, Mr Moane and Mr Wynn-Jones.
Mr Moane gave generalised expert evidence touching on the reasons for delay in the project.
In light of the manner in which the plaintiffs ultimately put their case on delay (by reference to the 10 periods I discussed in my reasons of 6 October 2015), I did not find it necessary to refer to Mr Moane's evidence.
However, I do not propose to make any special order concerning the costs associated with the preparation of Mr Moane's evidence. The parties can address submissions to the costs assessor in relation to that matter.
The evidence of Mr Wynn-Jones is in a different category. I rejected the tender of Mr Wynn-Jones's report for the reasons I set out in my judgment of 24 July 2015: Wang v Kaymet Corporation Pty Ltd [2015] NSWSC 1058.
As that evidence was rejected in its entirety (because of the shortcomings I outlined in my reasons of 24 July 2015) I do propose to qualify my costs order by excluding the costs associated with the preparation of Mr Wynn-Jones's report.
On 6 December 2013, by consent, the Court ordered that until further order the defendants be restrained from taking any steps to lease or sell any of the apartments in the building now erected on the Site.
The defendants now seek to be released from that restraint. In view of the conclusions to which I have come, I see no reason to continue that restraint.
The defendants also seek to recover damages from the plaintiffs arising from the undertaking as to damages the plaintiffs gave the Court as the price for obtaining the 6 December 2013 order. In effect, the defendants seek an enquiry as to the damage they have suffered by reason of the 6 December 2013 orders. I will make directions in that regard.
I propose to make the following orders and directions:
1. The Amended Summons is dismissed.
2. The plaintiffs are to pay the defendants' costs save for the costs associated with the preparation of the report by Mr Michael Wynn-Jones.
3. The order of 6 December 2013 is dissolved.
4. The defendants are hereby released from any and all undertakings which have the effect of restraining them from selling or leasing any part of the property at 15-23 Lusty Street, Wolli Creek.
5. The defendants are to serve by 5pm on 14 November 2015 any affidavits on which they rely in support of their claim for damages arising from the undertaking as to damages given to the Court by the plaintiffs on 6 December 2013.
6. The proceedings are stood over for directions before the Registrar on 16 November 2015.
If the parties wish to make submissions as to the form of those orders, they should send to my Associate short submissions (no more than two pages) by 5pm on 19 October 2015. Otherwise I will make the orders as I have proposed.
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Decision last updated: 15 October 2015