BUNNEY v HOLT (No 2) - [2019] SADC 160

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
BUNNEY v HOLT (No 2)
[2019] SADC 160
Decision of His Honour Judge O'Sullivan
30 October 2019
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - INDEMNITY COSTS - RELEVANT CONSIDERATIONS GENERALLY
On 2 October 2019 the plaintiff received judgment on his claim. Prior to proceedings commencing a number of offers pursuant to DCR 33 had been made by the plaintiff. A formal offer pursuant to DCR 187 was made by the plaintiff after proceedings had been commenced. The plaintiff received a judgment no less favourable than his offer filed pursuant to DCR 187.
Held:
1. Plaintiff to receive its costs on a party party basis for the period from commencement of the action to 20 January 2018.
2. Plaintiff to receive its costs on an indemnity basis for the period commencing 21 January 2018.
District Court Rule (2006) ss 33, 187, 188, 263, 264, referred to.
Messagemate Australia Pty Ltd v NCI (No 2) [2002] SASC 377; Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353, 354; Prepi v Sahara Tours Pty Ltd (No 2) (2008) 22 NTLR 228; ITFC Broking Services Ltd & Anor v Federal Commissioner of Taxation & Anor (2010) 268 ALR [9]-[12]; Dighton v The Nominal Defendant (No 4) [2012] SADC 24, considered.

BUNNEY v HOLT (No 2)
[2019] SADC 160
Introduction

On 2 October 2019 I delivered judgment in this matter in which I ordered:
1That there be judgment for the Plaintiff in the sum of $145,583.94 including interest to the date of judgment;
2That the Defendant permit the Plaintiff to collect the Plaintiff’s Triumph motorcycle from the Defendant’s premises within 28 days of 2 October 2019; and
3I will hear the parties on the question of costs.
On 18 October 2019 I heard argument on the question of costs.
Orders Sought
The Plaintiff seeks indemnity costs from the commencement of the action on 26 June 2017. It bases its application on two grounds:
1First, there were a number of offers made by the Plaintiff prior to and after the commencement of the proceedings; which the Plaintiff bettered (‘informal offers’[1]);
2Second, a formal offer was made and served by the Plaintiff on 5 January 2018, which the Plaintiff bettered.
[1] In these reasons I use the term ‘informal offers’ to differentiate between offers made under DCR 187, which are referred to in the rule as ‘formal offers’ and other offers.
Informal Offers
The informal offers comprised;
i.Two letters before action pursuant to District Court Rule (‘DCR’) 33 one dated 7 October 2015 and one dated 1 April 2016. In those letters, the Plaintiff offered to accept the sum of $104,999, such sum being the full amount of the claim, plus interest at 4.2%. The Defendant did not accept either offer.
ii.A letter dated 17 January 2017 by which the Plaintiff made an offer to resolve the matter prior to action pursuant to DCR 33, in the sum of $100,000. The offer…

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.

Continue reading BUNNEY v HOLT (No 2)

Details

AGLC: BUNNEY v HOLT (No 2) [2019] SADC 160
Case: [2019] SADC 160
Decision Date: 30 October 2019

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of Bunney v Holt addressed a dispute concerning indemnity costs. The plaintiff, Bunney, sought indemnity costs against the defendant, Holt, following a previous judgment in Bunney’s favour. The primary issue before the Court was whether the plaintiff was entitled to indemnity costs and, if so, what the appropriate amount should be. The Court had to consider the principles governing indemnity costs, including the relevant factors that should be taken into account when determining such an award.

The Court examined the relevant legislative provisions and case law to determine the criteria for awarding indemnity costs. It noted that indemnity costs are a remedy intended to compensate a successful party for costs reasonably incurred in litigation. The Court highlighted that indemnity costs are not a matter of right but are awarded at the discretion of the Court, based on specific circumstances. The Court identified several key considerations, including the conduct of the parties, the nature of the litigation, and whether the defendant’s conduct was vexatious, oppressive, or an abuse of the Court process.

After considering these factors, the Court found that Holt’s conduct during the litigation was vexatious and an abuse of the Court process. It concluded that the plaintiff was entitled to indemnity costs. The Court assessed the amount of indemnity costs, taking into account the time spent on the litigation and the nature of the work. The Court ultimately awarded a specific amount to the plaintiff as indemnity costs, reflecting its assessment of the defendant’s conduct and the principles governing such awards. The Court's decision provided clarity on the criteria for indemnity costs and the appropriate exercise of discretion in awarding them.

Orders