Australian Education Union (SA) v Grieve - [2000] SASC 430

AUST EDUC UNION (SA) (FORMERLY SAIT) v GRIEVE
[2000] SASC 430

1................ WILLIAMS J On 17 November 2000 I ordered that the plaintiff’s damages be assessed at $50 000 at the date of judgment for reasons which I then published (Judgment No. [2000] SASC 381). I am now required to deal with the costs of the action (other than the Full Court appeal).

On 5 August 2000 in the course of final addresses I received submissions from counsel as to questions of costs generally. On 24 November 2000 I received supplementary submissions when my attention was drawn to the defendant’s offer to consent to judgment which was filed in accordance with the Rules of Court on 11 June 1997; the amount then offered namely $30 000 was not accepted. The defendant contends that the amount was “adequate” in terms of Supreme Court Rules (“SCR”) 40.05 and seeks costs arising after 14 days from the date of offer.
Having regard to the manner in which I expressed the award for damages, it is convenient to restate in broad terms the effect of my decision in order to assess the adequacy of the offer on the date when it was made. The defendant breached his obligations as an architect in 1985; his default would have attracted an award of $20 000 if the breach and its consequences had immediately come to light and if the damages had been then assessed. In fact, the breach was not discovered until January 1994 and the action was commenced on 10 January 1995. If I had assessed damage as at the date of commencement of the action (assuming it to be 10 years after breach) I would have awarded $40 000. Thereafter I would have allowed interest at 10 per cent per annum on the original sum of $20 000 leading to the award of $50 000 in round terms some fifteen years after the original breach. As at the date of the filed offer (about twelve years after the breach), the amount which I would have awarded (namely about $44 000) can be seen to be greater than the offer. (I have used the same “rounded” figures as used by counsel - more exact calculations are unnecessary). Although the amount offered could be classed as “realistic”, the fact remains that it is below the amount of my assessment (however one looks at the effect of my calculations). I reject the defendant’s submissions that the amount offered was “adequate” in terms of the Supreme Court Rules.
The case proceeded to trial before me initially for 13 days (leading to my judgment of 4 June 1998) and there were further hearings regarding re-opening of evidence and then two days of final argument on 14 and 15 August 2000 to bring to account the Full Court’s decision.
The defendant disputed liability and there was also a substantial issue as to assessment of damages. The plaintiff claimed that the defendant had accepted supervisory responsibility as an architect…

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: [2000] SASC 430
Decision Date: 7 December 2000

CaseChat Overview and Summary

The case of Australian Education Union (SA) v Grieve involved the plaintiff, the Australian Education Union (SA), suing the defendant, Grieve, for damages arising from the defendant's alleged breach of his obligations as an architect. The plaintiff claimed that the defendant failed to ensure that their building was cleared of asbestos, resulting in the need for costly remediation. The defendant denied liability and contested the extent of the remedial work required. The case proceeded to trial before the Supreme Court of South Australia, with the court ultimately finding in favour of the plaintiff and awarding damages of $50,000. Following the damages assessment, the court was required to decide the issue of costs, including whether the defendant's offer to consent to judgment was adequate under the Supreme Court Rules.

The central legal issue the court had to decide was whether the defendant's offer to consent to judgment for $30,000 was "adequate" within the meaning of Supreme Court Rules 40.05. The court also had to consider the costs of the action, particularly in light of the plaintiff's partial success and the defendant's significant success on several key issues. The court noted that the plaintiff was successful in the action, but the damages awarded were modest compared to the potential liability had the plaintiff's primary claim been upheld. The court had to balance the plaintiff's success against the defendant's success in defending against the major claim and other issues, in accordance with statutory and rule-based discretion regarding costs.

The court concluded that the defendant's offer to consent to judgment for $30,000 was not adequate as it fell below the amount the court would have awarded. The court also found that while the plaintiff was successful in the action, the defendant achieved substantial success on key issues, and the case involved complex legal and factual disputes. In light of the overall circumstances, including the amount of damages awarded and the nature of the defendant's success, the court decided not to exercise its discretion in favour of the plaintiff for costs beyond a specific hearing on 4 June 1999. The court's final order was that the defendant pay the plaintiff's costs for the hearing on 4 June 1999 but that otherwise there be no order as to costs.

Orders