Baronglow Pty Ltd v Thomas (No 7) - [2008] SASC 33

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
BARONGLOW PTY LTD v THOMAS (NO 7)
[2008] SASC 33
Reasons of Judge Lunn a Master of the Supreme Court
20 February 2008
PROCEDURE - COSTS
Adjudication under Chapter 12 of Supreme Court Civil Rules 2006 - held there can be no waiver by the parties of the filing of a short form Claim for costs under 6R 271 - held the drawing fee for an itemised Schedule of costs under 6R 273 is to be assessed on the number of pages formatted in accordance with Form 28 and not solely in accordance with Note D to Schedule 1 to the Rules - held 6R 262(3) requiring a solicitor to maintain costing records did not preclude the solicitor from charging a drawing fee for the Schedule of costs.

BARONGLOW PTY LTD v THOMAS (NO 7)
[2008] SASC 33
BARONGLOW PTY LTD –v- THOMAS (No 7)
Reasons on reserved items.

JUDGE LUNN: I am adjudicating on a schedule of costs filed by Mr Thomas (FDN 87) pursuant to an order for costs in his favour made on 9 August 2007 against both Baronglow Pty Ltd and Mr Jordan. The adjudication is proceeding under Chapter 12 of the Supreme Court Civil Rules 2006. These reasons deal with 4 items, or groups of items, where I reserved my ruling so that I could consider the issues involved, and in one instance for Mr Jordan to provide further information.
Item 18.
This item is a claim for $7.30 on 19 July 2007 for “sending e-mail to Jordan advising review apparently now listed for 27 July”. Mr Jordan denied he had ever received this e-mail. He asserted that the print-out of it produced to me by Mr Thomas had been falsified. Even though the amount in issue was only $7.30, Mr Jordan insisted upon an adjudication on the item as he said he may wish to use it in a complaint against Mr Thomas to the Legal Practitioners Conduct Board. Because his professional standing had been put in question Mr Thomas refused to waive the item. I indicated I did not intend to do other than merely summarily determine an item where only $7.30 was at stake. Initially I adjourned further consideration of the item for Mr Jordan to seek expert evidence to support his assertion that the print-out of the e-mail produced by Mr Thomas could not have been of an e-mail sent on 19 July 2007, but he was unable to produce any such evidence.
The issue for determination on this adjudication is only whether Mr Thomas sent the e-mail. While evidence that it was not received is some indication that it may not have been sent there is also the equal possibility that through some malfunction in the e-mail system it was sent but it was not delivered to Mr Jordan. Mr Thomas filed an affidavit, FDN 91, deposing that such an e-mail was sent by him. I do not accept Mr Jordan’s convoluted…

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: [2008] SASC 33
Decision Date: 20 February 2008

CaseChat Overview and Summary

The matter before the court was a dispute between Baronglow Pty Ltd and Thomas concerning costs incurred in an adjudication under Chapter 12 of the Supreme Court Civil Rules 2006. The central issues revolved around the waiver of certain procedural requirements, the assessment of drawing fees for an itemised Schedule of costs, and the maintenance of costing records by a solicitor. The court was tasked with interpreting the relevant rules and determining whether the parties could waive the requirement to file a short form Claim for costs, how the drawing fee for an itemised Schedule of costs should be assessed, and whether the maintenance of costing records precluded a solicitor from charging a drawing fee.

The court commenced by examining the waiver of procedural requirements, finding that there can be no waiver by the parties of the filing of a short form Claim for costs under rule 271. This interpretation was based on the strict procedural obligations outlined in the rules, which are designed to ensure transparency and predictability in the adjudication process. Regarding the assessment of drawing fees, the court clarified that the fee for an itemised Schedule of costs under rule 273 is to be assessed based on the number of pages formatted in accordance with Form 28, rather than solely according to Note D to Schedule 1 to the Rules. This decision provided clarity on the method of fee calculation, ensuring consistency and fairness in the assessment process. Finally, the court addressed the issue of maintaining costing records, ruling that rule 262(3) did not preclude a solicitor from charging a drawing fee for the Schedule of costs. This conclusion was reached by interpreting the rule as not being intended to prevent the charging of such fees, thereby allowing for practical and efficient administration of costs.

The court's decision provided clear guidance on the interpretation and application of the relevant rules, ensuring that parties are aware of their procedural obligations and the methods for assessing costs. The final orders reflected the court's findings, with specific directions given to the parties regarding the filing of the short form Claim for costs, the assessment of drawing fees, and the maintenance of costing records by the solicitor.

Orders