Artcraft Pty Ltd v Dickson (No 2) - [2014] SASC 144

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
ARTCRAFT PTY LTD & ANOR v DICKSON & ANOR (No 2)
[2014] SASC 144
Reasons for Ruling of The Honourable Justice Kelly
24 September 2014
PROCEDURE - COSTS
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - ORDER FOR COSTS ON INDEMNITY BASIS
On 15 August 2014, judgment was delivered in this matter in favour of the plaintiffs against the first and second defendant. The plaintiffs were wholly successful as against the first defendant and successful only in part as against the second defendant. The plaintiffs now apply for costs. As against the first defendant the plaintiffs seek an order for costs on a party and party basis and on an indemnity basis from the date of a Calderbank letter. As against the second defendant, the plaintiffs apply simply for an order for costs on a party and party basis.
Held:
As against the first defendant, the plaintiffs are entitled to an award of costs on a party and party basis to the date of the commencement of the trial and on an indemnity basis from that date onwards, which costs are to be taxed or agreed. In the circumstances of this case, an award of costs on an indemnity basis from the date of the commencement of the trial is appropriate having regard to the obduracy of the first defendant and, or, the legal advice he received which has resulted in the plaintiffs incurring unnecessary costs of a trial which ought never to have been defended.
As against the second defendant, the plaintiffs are entitled to an award of two thirds of their party and party costs of the action, which costs are to be taxed or agreed.
Calderbank v Calderbank [1975] 3 All ER 333; Stewart v Atco Controls Pty Ltd (in liq) (No 2) [2014] HCA 31, considered.

ARTCRAFT PTY LTD & ANOR v DICKSON & ANOR (No 2)
[2014] SASC 144
CIVIL
KELLY J.

On 15 August 2014 I delivered judgment in favour of the plaintiffs against the first and second defendants.
The plaintiffs succeeded wholly in the claim against the first defendant, however, as against the second defendant, the plaintiffs succeeded only in part.
On 21 August 2014 formal judgment was entered in favour of the plaintiffs as against the first defendant for general damages in the sum of $891,166 plus exemplary damages in the amount of $50,000 plus interest in the total amount of $204,513. As against the second defendant the plaintiffs were awarded equitable compensation in the sum of $59,800 plus interest in the amount of $10,412.
On that date I heard oral submissions as to costs. At the conclusion of argument on that date each of the parties were invited to supplement those submissions with further written submissions. In due course I received further written submissions from the plaintiffs on 4 September 2014 and 5 September 2014 and the second defendant on 4 September 2014.
I shall deal first with the application made for…

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.

Continue reading Artcraft Pty Ltd v Dickson (No 2)

Details

AGLC: Artcraft Pty Ltd v Dickson (No 2) [2014] SASC 144
Case: [2014] SASC 144
Decision Date: 24 September 2014

CaseChat Overview and Summary

Artcraft Pty Ltd, the plaintiff, brought proceedings against Dickson, the first defendant, and another party, the second defendant. The case revolved around disputes relating to costs. The matter was heard in the Supreme Court of Queensland. The primary legal issue before the court was whether the plaintiffs were entitled to an award of costs on an indemnity basis against the first defendant and if the plaintiffs were entitled to a proportion of their costs against the second defendant.

The court considered the conduct of the first defendant and the advice he received, which led to the plaintiffs incurring unnecessary costs. Given the obduracy of the first defendant and the legal advice he acted upon, the court determined that an award of costs on an indemnity basis from the commencement of the trial was appropriate. Regarding the second defendant, the court found that the plaintiffs were entitled to two thirds of their party and party costs of the action.

The court awarded the plaintiffs costs on a party and party basis to the date of the commencement of the trial and on an indemnity basis from that date onwards as against the first defendant. The plaintiffs were also awarded two thirds of their party and party costs of the action against the second defendant. The costs were to be taxed or agreed, reflecting the circumstances of the case and the conduct of the parties involved.

Orders

Orders of the court

As against the first defendant, the plaintiffs are entitled to an award of costs on a party and party basis to the date of the commencement of the trial and on an indemnity basis from that date onwards, which costs are to be taxed or agreed. In the circumstances of this case, an award of costs on an indemnity basis from the date of the commencement of the trial is appropriate having regard to the obduracy of the first defendant and, or, the legal advice he received which has resulted in the plaintiffs incurring unnecessary costs of a trial which ought never to have been defended.

As against the second defendant, the plaintiffs are entitled to an award of two thirds of their party and party costs of the action, which costs are to be taxed or agreed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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