Boulus Constructions Pty Ltd v Warrumbungle Shire Council (No 3)

On 12 October 2022, I granted the defendant/cross-claimant, Warrumbungle Shire Council, leave to amend its Technology and Construction Cross-Claim Cross-Summons and Cross-Claim List Statement to add a claim against the plaintiff, Boulus Constructions Pty Limited, and against Mr Brian Boulus and Mr Bradley McCarthy under s 37 of the Design and Building Practitioners Act 2020 (NSW) (“the Act”). [1]

I stated that I would order that the Council pay Boulus Constructions’ costs thrown away by the amendment and invited submissions as to what, if any, further orders I should make as to costs.

I have now received the parties’ submissions on that question.

As I said in my 12 October 2022 judgment, [2] it is apparent that Boulus Constructions will incur further costs to adduce evidence to meet the Council’s case now being formulated as a breach of duty under s 37 of the Act.

To the extent that this involves Boulus Constructions revisiting evidence already adduced by it to answer the Council’s claim in contract, and adducing such further evidence as is necessary to meet the new claim for breach of the statutory duty under s 37 of the Act, these costs will be part of Boulus Constructions’ costs thrown away by the amendment. I consider that my order should make this clear.

In that regard, and contrary to the Council’s submissions, I do not see it to be to the point that the s 37 claim is brought not only against Boulus Constructions but also against Mr Boulus and Mr McCarthy, nor that it may be that Mr Boulus or Mr McCarthy will retain the same legal team as is presently acting for Boulus Constructions. Mr Boulus and Mr McCarthy will, of course, have to bear the costs of being joined as parties. But Boulus Constructions, already a party, may have to incur further costs in supplementing evidence already served to meet the reformulation of the Council’s claim against it; and to that extent, should not have to bear those additional costs.

As to the costs of the Council’s application to amend, it is true, as the Council submitted, Boulus Constructions was unsuccessful in resisting the amendment. It is also true, as the Council submitted, that “Boulus Constructions resisted the application principally on legal grounds which were determined adversely to it”. However, I do not agree with the Council’s submission that “[n]one of those legal grounds had any intrinsic merit”. I decided the amendment application adversely to Boulus Constructions, but its submissions were by no means without merit. In particular, as I hope my judgment of 12 October 2022 makes clear, the issue as to what “person” means, when used in s 37 of the Act, was one with some complexity.

Overall, I think that the justice of this case requires that I make orders which make clear the ambit of my order concerning costs thrown away by the amendment, and order that the Council’s costs of the application to amend itself be its costs in the Cross-Claim.

I make the following orders: