Bradman v Allens Arthur Robinson (No 2) - [2009] SASC 180

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
BRADMAN & ORS v ALLENS ARTHUR ROBINSON (No 2)
[2009] SASC 180
Judgment of The Honourable Justice Kourakis
29 June 2009
PROCEDURE - COSTS - INTERLOCUTORY PROCEEDINGS
The defendants were successful on an application for summary judgment in their favour with respect to some paragraphs of the plaintiffs' statement of claim - whether those paragraphs should be struck out or dismissed- whether costs should be payable forthwith, reserved or costs in the cause.
Held: Summary judgment for the defendants is granted on paragraphs [33] - [35] of the plaintiffs' statement of claim - the remainder of the paragraphs that were the subject of the summary judgment application are struck out - the plaintiffs are to pay 80 per cent of the defendants' costs of and incidental to the summary judgment application, those costs not being payable forthwith.
Limitations of Actions Act 1936 (SA) s 3, 35, 48(1); Supreme Court Civil Rules 2006 (SA) r 54, 104, 117, 193, 263, 264, referred to.
Bradman & Ors v Allens Arthur Robinson [2009] SASC 80; Palmdale Insurance Co (In Liq) v L Grollo & Co Pty Ltd [1986] VR 408, applied.
Danae Investment Trust PLC v MacIntosh Nominees Pty Ltd (1993) 61 SASR 341; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Alstom Power Ltd v Yokogawa Australia Pty Ltd (No 2) (2006) 244 LSJS 65; H Stanke & Sons Pty Ltd v Stanke (No 2) [2007] SASC 109, considered.

BRADMAN & ORS v ALLENS ARTHUR ROBINSON (No 2)
[2009] SASC 180

KOURAKIS J: After the delivery of my reasons for judgment[1] on an application by the defendants for summary judgment in their favour on parts of the plaintiffs’ statement of claim, I heard the parties on the precise form of the orders that should be made and on the question of costs.
[1] Bradman & Ors v Allens Arthur Robinson [2009] SASC 80.
The defendants sought summary judgment on the grounds that there was no reasonable prospect that the plaintiffs would establish an entitlement, on the material fact pleaded by them, to an extension of time in which to bring common law proceedings for breach of duty and retainer. In Bradman & Ors v Allens Arthur Robinson[2] I held that the defendants were entitled to summary judgment on that question. The proceedings brought by the plaintiffs included proceedings for breach of equitable duty. That part of the plaintiffs’ claim was not the subject of the summary judgment application and will proceed to trial in the ordinary course.
[2] [2009] SASC 80.
The dispute between the plaintiffs and the defendants is as to the precise form of order that should be made with respect to those paragraphs of the plaintiffs’ statement of claim which plead the common law action. The plaintiffs submit that those paragraphs should be struck out. The defendants submit 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: [2009] SASC 180
Decision Date: 29 June 2009

CaseChat Overview and Summary

Bradman v Allens Arthur Robinson (No 2) involved a dispute between the plaintiffs and the defendants, who were successful in their application for summary judgment concerning certain paragraphs of the plaintiffs' statement of claim. The central issue before the court was whether specific paragraphs should be struck out or dismissed and if costs should be payable immediately, reserved, or borne by the cause. The court had to balance the successful party’s entitlement to costs against the potential for further litigation, which could influence the costs outcome.

The court considered the possibility of additional interlocutory applications that could affect the costs, given the plaintiffs’ prospects of success in those future proceedings. The judge reasoned that if the plaintiffs had applied for an adjournment, they might have succeeded. However, since the plaintiffs did not seek an adjournment, it was not appropriate to reserve the costs or deny the defendants their costs for the successful summary judgment application. The judge also highlighted that the prospect of further applications provided sufficient reason to decline ordering the costs to be paid immediately.

In conclusion, the court granted summary judgment for the defendants on paragraphs [33] to [35] of the plaintiffs' statement of claim. The court also struck out several other paragraphs and specific terms from the plaintiffs’ statement of claim. The plaintiffs were ordered to pay 80 per cent of the defendants’ costs associated with the summary judgment application, with these costs not being payable forthwith.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Those prospects raise the real possibility of further interlocutory applications, that, depending on the plaintiffs’ success, may result in costs orders which can appropriately be set off against the costs of this application. For that very reason, if the plaintiffs had sought an adjournment of the summary judgment application they may have been successful. The plaintiffs having failed to make that application, it is now not appropriate that the costs of the application be reserved or that the defendants be denied the costs of their successful application. However, the prospect of the further applications to which I have referred is just reason enough to decline to order the costs payable forthwith.Conclusion I give summary judgment for the defendants on paragraphs [33] - [35] of the plaintiffs’ statement of claim. I strike out paragraphs [11], [12], [15], [19], [25], and [30]. I also strike out the words “the implied term of due care, skill and diligence, the duty of due care, skill and diligence, and”, and the paragraph numbers 15, 19, 25 and 30, from paragraph [32] of the plaintiffs’ statement of claim. I order that the plaintiffs pay the defendants 80 per cent of the costs of their application.

Ratio Decidendi

Legal Principle Established

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