Brine v Carter

[2016] SASCFC 62

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

BRINE & ORS v CARTER

[2016] SASCFC 62

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Lovell)

20 May 2016

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - HEARING OF APPEAL - PROCEDURE

Application for permission to appeal to the Full Court of the Supreme Court against an order for costs made by Justice Blue.

The applicant (the defendant) is the former de facto spouse of the late Professor Brine. The respondents (plaintiffs) are the sons of Professor Brine.

The respondents, in their capacity as co-executors of the estate, brought a claim against the applicant for a breach of fiduciary duty as an executor claiming that she was obliged to account to the estate for superannuation paid to her.

On 22 December 2015, Justice Blue delivered reasons for judgment dismissing the claim of breach of fiduciary duty because the applicant failed on the issue of causation.

Each party sought an order that the other party pay their costs of action.

On 23 March 2016 Justice Blue ordered the respondents to pay 50 per cent of the applicant’s costs of the action on a party/party basis to be adjudicated if not agreed.

The applicant sought permission to appeal against that costs order.

Held per the Court:

1. The question of permission to appeal against the costs order is referred to the Full Court hearing the appeal against the substantive orders.

BRINE & ORS v CARTER
[2016] SASCFC 62

Full Court:  Kourakis CJ, Stanley and Lovell JJ

1. THE COURT:      This is an application for permission to appeal against a costs order.  The applicant who was the successful defendant in the action received an order for 50% of her costs.  An appeal against substantive orders made in a related action heard concurrently with the action in which the challenged costs order was made will be heard by the Full Court later this year.

2. The question of permission to appeal in this matter will be listed before that Full Court.  The parties are directed to confer on the timely preparation of a case book for the purposes of the hearing.