Brown & Brown v Unique Building Pty Ltd (NO. 2) - [2009] SADC 18

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
BROWN & BROWN v UNIQUE BUILDING PTY LTD (NO. 2)
[2009] SADC 18
Reasons for Decision of Her Honour Judge McIntyre
6 March 2009
PROCEDURE - COSTS
Plaintiffs seek costs on a solicitor/client basis from 21 March 2008 relying on offer filed under Rule 187 of the District Court Civil Rules 2006 - Consideration of DCR 187(3)(c) and whether plaintiffs' offer complied with rules - Held: Offer compliant with rules - Plaintiffs entitled to costs.

PROCEDURE - JUDGMENTS AND ORDERS
Plaintiffs seek that one judgment be entered on the basis of the amount awarded to the plaintiffs on the claim less the amount ordered on the counterclaim - Consideration of discretion under DCR224(2) - Separate judgments to be entered in the circumstances of this matter.

INTEREST
Consideration of plaintiffs' entitlement to interest in view of time taken to issue proceedings. Interest awarded to plaintiffs on claim from 11 November 2002 to date of judgment and to defendant on counterclaim from 21 February 2003 to date of judgment.
District Court Civil Rules 2006 Rule 187, Rule 224(2), referred to.
Gertig v Davies & Anor (2003) 85 SASR 226; Metro Meat v Warlick (1992) 167 LSJS 455; Forlyle Pty Ltd v Tiver & Anor [2007] SASC 464; Waller v Flinders Medical Centre (No 4) (2004) 225 LSJS 421, considered.

BROWN & BROWN v UNIQUE BUILDING PTY LTD (NO. 2)
[2009] SADC 18

On 19 February 2009 I delivered Reasons for Judgment in this matter together with proposed orders. I heard from the parties as to the form of the orders, interest and costs on 25 February 2009.
Correction
First I correct some arithmetical errors in the Reasons for Judgment delivered on 19 February 2009. In paragraph 146 the contract cost to complete should have been $505,617.04 and not $505,517.04. The additional cost to complete occurring in paragraphs 146 and 149 should therefore have been $109,223.96 rather than $109,323.96 as presently appears. The proposed judgment sum for the plaintiffs in paragraph 151 of the Reasons should therefore be $241,828.96 in lieu of $241,928.96.
Form of Orders
I invited the parties to comment on the form of orders. The plaintiffs seek one judgment being the amount awarded to the plaintiffs less the amount awarded to the defendant on its counter-claim. The defendant resists this.
I was referred to the decision in Gertig v Davies & Anor[1] which recognises that whilst a set off operates procedurally there is a substantive aspect to the entitlement to a set off and to the ordering of a set off. It does not however assist me with determining whether it is more appropriate to enter a judgment on each of the claim and the counter-claim or a balance judgment in this matter.
[1] (2003) 85 SASR 226
The Court has discretion whether to enter a balance judgment or not.[2] There would be a lack of certainty as to the quantum of a balance judgment due to the different dates of…

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] SADC 18
Decision Date: 6 March 2009

CaseChat Overview and Summary

In the matter of Brown & Brown v Unique Building Pty Ltd (NO. 2), the plaintiffs sought to recover costs from the defendant on a solicitor/client basis, as well as seeking a consolidated judgment. The dispute arose out of a contractual relationship between the parties, which ultimately led to litigation in the District Court of New South Wales. The defendant had counterclaimed against the plaintiffs, and both parties had sought costs and a consolidated judgment.

The primary legal issue before the court was whether the plaintiffs' offer for costs, filed under Rule 187 of the District Court Civil Rules 2006, complied with the relevant rules. In particular, the court considered whether the plaintiffs' offer complied with DCR 187(3)(c). Additionally, the court needed to determine whether it would exercise its discretion under DCR 224(2) to enter a consolidated judgment.

The court found that the plaintiffs' offer for costs was compliant with the relevant rules. The court considered the plaintiffs' offer to be in accordance with DCR 187(3)(c), which allows for an offer to be made at any time. The court held that the plaintiffs were entitled to recover their costs on a solicitor/client basis. However, in relation to the consolidated judgment, the court determined that separate judgments should be entered in the circumstances of this matter. The court exercised its discretion under DCR 224(2) and concluded that separate judgments were appropriate in this case.

The court's final orders included the plaintiffs being entitled to recover their costs on a solicitor/client basis from 21 March 2008, and separate judgments being entered on the basis of the amount awarded to the plaintiffs on the claim less the amount ordered on the counterclaim. The court's decision provides clarity for parties involved in similar disputes, as it demonstrates the court's approach to the recovery of costs and the exercise of its discretion in relation to consolidated judgments.

Orders