Brine v Carter (No 2)

Case [2016] SASC 37

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

BRINE v CARTER (No 2)

[2016] SASC 37

Judgment of The Honourable Justice Blue

16 March 2016

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF WHOLE ACTION - WHERE MONEY PAID INTO COURT OR OFFER OF COMPROMISE MADE

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PAYMENT INTO COURT, AND OFFERS TO SETTLE OR CONSENT TO JUDGMENT

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF ISSUES

Costs in action to account for breach of fiduciary duty.

Reasons for judgment previously delivered dismissing the claim of breach of fiduciary duty because the plaintiff failed on the issue of causation. Declaration made that the grant of a life estate in the testator’s “principal residence in Australia” was confined to 440 Gilles Street. Action otherwise dismissed.

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

Held:

1.       The plaintiffs should pay at least part of the defendant’s costs of action because the event was decided in favour of the defendant (at [17]).

2.       The defendant's costs to be paid by the plaintiffs should be reduced by 50 per cent to reflect the fact that the defendant failed on the majority of issues in the action and in respect of the issues on which evidence was adduced (at [18]).

3.       The fact that the plaintiffs obtained the declaration should not give rise to a different costs order because the costs incurred on the construction issue were incurred predominantly in the related action by the defendant against the plaintiffs (at [21]).

4.       The Calderbank offer made by the defendant on 7 August 2015 should not lead to any different cost order (at [58]).

Trustee Act 1936 (SA) s 91; Administration and Probate Act 1919 (SA) s 69; Supreme Court Civil Rules 2006 (SA), referred to.
Morris v McEwin (2005) 92 SASR 281; BHP Billiton Ltd v Parker (2012) 113 SASR 206; Peter Bodum A/S v DKSH Australia Pty Ltd [2010] FCA 456; Alexander v Australian Community Pharmacy Authority (No 3) [2010] FCA 506, discussed.
Australian Trade Commission v Disktravel [2000] FCA 62; Belongil Progress Association Inc v Byron Shire Council [2000] NSWLEC 118; Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107; Copping v ANZ McCaughan Ltd (1995) 63 SASR 523; Forlyle Pty Ltd v Tiver [2007] SASC 464; Milne v Attorney-General for the State of Tasmania (1956) 95 CLR 460; Mok v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1993) 47 FCR 81; Essential Beauty Franchising (WA) Pty Ltd v Pilton Holdings Pty Ltd (No 2) [2014] SASC 141; Essential Beauty Franchising (WA) Pty Ltd v. Pilton Holdings Pty Ltd (No 2) [2014] SASC 141; Herning v GWS Machinery Pty Ltd [No 2] [2005] NSWCA 375; Leichhardt Municipal Council v Green [2004] NSWCA…

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AGLC
Brine v Carter (No 2) [2016] SASC 37
Case
[2016] SASC 37
Decision Date

CaseChat Overview and Summary

In the case of Brine v Carter (No 2), the court was required to determine the appropriate costs to be awarded in the proceedings. The parties involved were the Brines, the plaintiffs, and Ms Carter, the defendant. The dispute arose from a claim made by the Brines against Ms Carter, which ultimately resulted in a partial compromise. The matter was heard in the Supreme Court of South Australia.

The central legal issue was the appropriate allocation of costs between the parties, particularly in light of an offer of compromise made by Ms Carter. The court needed to determine whether the Brines had unreasonably rejected Ms Carter's offer and whether, as a result, Ms Carter should be awarded costs on a solicitor and client basis. The court also had to consider the overall costs of the action and the specific issues that were contested.

In reaching its decision, the court carefully assessed the circumstances surrounding Ms Carter's offer of compromise. The court noted that the offer was made at a late stage in the proceedings, and the Brines had a limited time to consider it. Additionally, the offer contained a condition that the Brines would not be indemnified out of Ms Carter's estate for their costs, which further complicated the assessment. The court concluded that the Brines had not unreasonably rejected the offer and that the discretion should not be exercised to award costs in favour of Ms Carter on a solicitor and client basis.

The court ordered that the Brines pay 50% of Ms Carter's costs of the action on the usual party/party basis. This decision reflects the court's consideration of the various factors involved in determining the appropriate allocation of costs in the context of the proceedings.

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

Taking into account the amount of the claim, the limited extent of the compromise offered by Ms Carter, the difficulty of assessing whether Ms Carter bettered her offer due to the condition that the Brines not be indemnified out of the estate for their costs and the point at which the offer was made, it is not possible to conclude that the Brines unreasonably rejected the offer or that the discretion should be exercised to award costs in favour of Ms Carter thereafter on a solicitor and client basis.Conclusion The Brines should pay 50% of Ms Carter’s costs of action on the usual party/party basis.

Ratio Decidendi

Legal Principle Established

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