Burford v Allan

Burford v Allan is an appeal against a decision by a judge of the Supreme Court of South Australia, which was made upon a review of a decision by a master upon a taxation of costs. The plaintiff, Burford, was the successful plaintiff in an action claiming damages for personal injury that she sustained in a motor vehicle accident. The plaintiff was unable to provide funds to cover the disbursements to be incurred by the solicitors in connection with the litigation, and therefore her solicitors arranged for a litigation loan. The master allowed the sum of $14,000.00 as interest and charges in respect of the litigation loan. The judge reversed the decision of the master, holding that there was no authority to support the allowance of such an item. The issue on appeal is whether the master had the power to allow the item in question.

The court held that the power to award costs is statutory and is contained in s40(1) of the Supreme Court Act 1935. The term "costs" is not defined by the Act, but the Rules regulate the awarding of costs and it is regulated by r101 in particular. The court found that the master was not authorised to allow the item as it did not fall within the recognised meaning of "costs". The court concluded that the judge was right to reverse the master’s decision on the point.

The court also considered the decision of the judge relating to the award of interest upon the taxed costs. The court held that there is no fixed rule that costs must follow the event and there is a well-recognised practice of awarding costs in accordance with the outcome of particular issues. The court held that it was not open to the judge to exercise his discretion in the manner that he did, and the court would not interfere.

The court dismissed the appeal and ordered that the cross-appeal be struck out as incompetent. The court hoped that either the court, through an amendment to the Rules, or Parliament, through an amendment to s.40 of the Act, may be able to remedy the injustice caused by the decision.