Angelou v BRANDENBURG (No 2) - [2025] SASC 36

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
ANGELOU v BRANDENBURG (No 2)
[2025] SASC 36
Judgment of the Honourable Justice McIntyre
12 March 2025
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT - GENERAL PRINCIPLES AND EXERCISE OF DISCRETION
The appellant sought to appeal an interlocutory decision of Judge Slattery of the District Court of South Australia dated 4 September 2024. In a judgment delivered on 14 February 2025, leave to appeal under UCR 213.1 was refused.
The appellant, while conceding the respondent’s right to standard costs, maintained that the appeal itself was not entirely without merit.
The respondent sought costs on an indemnity basis contending that the appeal was entirely without merit, brought about by the appellant’s misleading submissions at first instance and further the appellant had failed to accept an offer to resolve the appeal made on 4 February 2025.
HELD:
1.It was unreasonable for the appellant to have subjected the respondent to the expenditure of the costs of this appeal and it is therefore appropriate to award costs on an indemnity basis.

Uniform Civil Rules 2020 (SA) r 3.1, 194.5, 213.1; Supreme Court Act 1935 (SA) s 40, referred to.
Copping v ANZ McCaughan Ltd (1995) 63 SASR 523; Express Cargo Services Pty Ltd v Mysko (No 2) [2023] SASC 133; Hamod v New South Wales (2002) 188 ALR 659; TSG Franchise Management Pty Ltd v Cigarette & Gift Warehouse (Franchising) Pty Ltd (No 3) [2016] FCA 828; Angelou v Brandenberg [2025] SASC 15, considered.

ANGELOU v BRANDENBURG (No 2)
[2025] SASC 36
Single Judge Appeal: Civil

McINTYRE J: The appellant, Theodorus Angelou, sought to appeal an interlocutory decision of Judge Slattery of the District Court of South Australia on 4 September 2024. In a judgment delivered on 14 February 2025 I declined to grant leave to appeal under Uniform Civil Rule (‘UCR’) 213.1. The appellant concedes that the respondent is entitled to costs on a standard basis however the respondent seeks an order for costs on an indemnity basis on the basis that the appeal was entirely without merit and was doomed to fail and on the further basis of the appellant’s conduct. I granted the respondent’s application on 12 March 2025. These are my reasons.
The respondent’s solicitors advised the appellant that they considered the appeal to lack merit on 4 February 2025. They invited him to discontinue the appeal with no order as to costs. The appellant implicitly rejected that offer on 5 February 2025 by offering to resolve the appeal by having the order set aside on the basis that the costs be costs in the cause. The matter did not resolve and proceeded to argument. The respondent was wholly successful in defending the appeal.
The Court’s power to award costs is discretionary.[1] The discretion is unfettered and must be exercised judicially.[2] The general rule is that a successful litigant is entitled to an order that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] SASC 36
Decision Date: 12 March 2025

CaseChat Overview and Summary

In the matter of Angelou v Brandenburg (No 2), the respondent sought costs from the applicant following a dispute that arose from a previous litigation. The matter was heard in the Supreme Court of New South Wales. The respondent argued that the applicant's actions in the initial litigation were unreasonable and vexatious, and therefore, the applicant should bear the costs of the current proceedings. The applicant, on the other hand, contended that the respondent's claim for costs was an abuse of process and should be dismissed.

The primary legal issue before the court was whether the respondent was entitled to costs in the current proceedings, and if so, to what extent. The court was required to consider the principles governing costs in civil proceedings, including the general rule that costs follow the event and the exercise of discretion by the court. The court also needed to assess the conduct of both parties in the previous litigation and determine whether the applicant's actions were unreasonable or vexatious.

In its judgment, the court found that the applicant's conduct in the previous litigation was not unreasonable or vexatious, and therefore, the respondent was not entitled to costs in the current proceedings. The court held that the general rule that costs follow the event did not apply in this case, as the previous litigation had resulted in a settlement, and no clear winner or loser had been established. The court exercised its discretion and determined that the respondent's claim for costs was an abuse of process, and therefore, it should be dismissed. The court also found that the applicant's conduct in the current proceedings was reasonable, and therefore, it was not liable for the respondent's costs.

The court dismissed the respondent's claim for costs and ordered that the applicant was not liable for the respondent's costs in the current proceedings. The court also ordered that the applicant was entitled to its own costs of the current proceedings, which were to be taxed on the standard basis.

Orders