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 costs follow the event.[3] The authorities concerning the type of conduct that warrants an award of indemnity costs were considered by Stein J in Express Cargo Services Pty Ltd v Mysko (No 2)[4] noting that an award of indemnity costs is premised on some special or unusual feature of the case justifying departure from the usual principle. In Hamod v New South Wales the Full Court explained the principle for an award of indemnity costs in the following terms:[5]
Indemnity costs are not designed to punish a party for persisting with a case that turns out to fail. They are not awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs.
[1]     Supreme Court Act 1935 (SA) s 40.
[2]     Copping v ANZ McCaughan Ltd (1995) 63 SASR 523 at 527-528.
[3]     Uniform Civil Rules 2020 (SA) (‘UCR’) r 194.5.
[4] [2023] SASC 133 at [23] – [24].
[5] (2002) 188 ALR 659 at [20].
If an indemnity costs order is sought on the basis that a party’s case lacked merit, a party’s knowledge of their likelihood of success will be relevant. The Court will consider the litigant’s conduct against various matters including the facts known, or which ought to have been known, enquiries a litigant ought reasonably to have made and legal advice which a litigant ought reasonably to have obtained. In TSG Franchise Management Pty Ltd v Cigarette & Gift Warehouse (Franchising) Pty Ltd (No 3) Davies J held that:[6]
The cases illustrate the appropriateness of awarding costs on an indemnity basis where there has been particular misconduct that caused a loss of time to the Court and to other parties, where proceedings were commenced or continued in wilful disregard of known facts or clearly established law, where allegations were made which ought never to have been made, or where the proceeding was unduly prolonged by groundless contentions.
[6] [2016] FCA 828 at [7].
The respondent contends that my findings that the grounds of appeal either failed to establish an error or an error warranting appellate intervention or did not disclose a proper ground of appeal together with the findings concerning the conduct of the appellant’s counsel warrants an indemnity costs order.[7] The respondent further argues that the appellant’s conduct was “inconsistent with parties’ overarching obligations” as outlined in UCR r 3.1(1). Finally, the respondent relies on an offer made on 21 February 2025 to resolve the question of costs.
[7] FDN 16; NDSS-2.
Much of the submissions made on behalf of the appellant sought to go behind the judgment. I found that the order that was the subject of the appeal was brought about by misleading submissions on the part of the appellant’s counsel.[8] The appellant’s counsel filed an affidavit in which he attempts, in effect, to reargue these issues.[9] Even if this was an appropriate course of action on a costs argument, the affidavit makes it plain that the appellant’s counsel positively asserted to Judge Slattery that there were Federal Circuit and Family Court of Australia (‘FCFCOA’) proceedings on foot when he was in fact not certain about this. The issue was, as I said in my primary reasons, compounded by his failure to correct his original submission in a subsequent hearing. To say, as he does in his affidavit, that he had some documents on file “indicating the possibility of proceedings in a Family Court”, that he was unable to check this with the FCFCOA, or that his conduct was in some manner the fault of the unrepresented respondent for not correcting his assertions to the court is not a proper response. This is not the conduct expected of an experienced practitioner.
[8] Angelou v Brandenberg [2025] SASC 15 at [24] – [28], [39] and [41].
[9] FDN 18.
The appellant’s submission that appeal was the only option available to the appellant in the circumstances is also an inappropriate submission on the topic of costs in the light of my findings on that topic. [10]
[10] Angelou v Brandenberg [2025] SASC 15 at [28].
The appellant contended that just because an appeal is not successful it does not mean that it lacked merit. I accept that this is the case. He further contended that the offer made by the respondent on 4 February 2025 was ineffective as it did not identify the basis upon which it was said that the appeal was doomed to fail and further that the offer for each party to bear their won costs was not a genuine offer of compromise.
Whilst I accept that it may have been helpful to include some details of the basis upon which it was said that the appeal was doomed to fail, it was not necessary for the respondent to bear the cost of detailing this for the offer to be considered. The appellant’s legal representatives ought, at this point, to have carefully and objectively considered the merits of the appeal and provided advice accordingly. I will not reiterate the matters set out in my primary reasons, suffice to say that there were a number of matters that ought to have been of concern not the least of which was whether appeal was the appropriate course of action as opposed to seeking further directions from the District Court and the fact that it was necessary for the appellant to obtain leave to appeal. It is not apparent what, if any, advice was provided to the appellant about his prospects of success on appeal or the respondent’s offer. The appellant’s response on 5 February 2025 did not comment upon the merits of his appeal but was, in effect, a counteroffer for the respondent to concede the appeal with costs in the cause. I further consider that, in the circumstances, an offer by the respondent to bear her own costs was a genuine offer of compromise capable of acceptance by the appellant.
In relation to the respondent’s offer to compromise the costs of the appeal the appellant sought details of the type associated with a taxation of costs including an itemised list of fees. I consider that sufficient detail was provided to the appellant to enable advice to be given on the merits of that offer. This of itself would not lead me to consider that an award of costs on an indemnity basis was appropriate however it demonstrates the approach taken by the appellant to the conduct of these proceedings.
The appellant persisted with this appeal notwithstanding the 4 February 2025 offer from the respondent. The appellant ought to have known that the appeal lacked merit and was doomed to fail. The proceedings were continued in “wilful disregard of known facts or clearly established law”. In all of the circumstances I consider that it was unreasonable for the appellant to have subjected the respondent to the expenditure of the costs of this appeal and accordingly that it is appropriate to award costs on an indemnity basis.