Butler v Tiburzi (No 2)

[2016] SASC 141

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

BUTLER v TIBURZI (NO 2)

[2016] SASC 141

Judgment of The Honourable Justice Lovell

2 September 2016

PROCEDURE - COSTS

The plaintiff sought costs of the action on a solicitor/client basis. Offers of settlement, including a Calderbank letter were made by the defendant. No offers of settlement were filed by the plaintiff.

Whether "standard order" should apply in the circumstances of this case.

Held: Plaintiff to have costs on a party/party basis to be agreed or taxed.

Parker & Ors v Australian Executor Trustees Limited (No 2) [2016] SASC 115; Whitington v Whitington (No 2) [2009] SASC 178, discussed.

BUTLER v TIBURZI (NO 2)
[2016] SASC 141

Civil

LOVELL J.

1. On 26 July 2016 I delivered judgment in this matter.

2. Ms Butler was successful in her claim. She seeks an order for costs on a solicitor/client basis. The basis of the application is that I should award costs on a solicitor/client basis in accordance with the “usual practice” in this jurisdiction. This is sometimes referred to as the “standard order”.

3. I recently dealt with this issue in the matter of Parker & Ors v Australian Executor Trustees Limited (No 2).[1] In that case, following the decision of White J in Whitington v Whitington (No 2)[2] I determined that the usual discretion as to costs was to be exercised but the practice of making a “standard order” was a factor to be taken into account in the exercise of that discretion. I intend to adopt that approach in this matter.

   [1] [2016] SASC 115.

   [2] [2009] SASC 178.

4. I have taken into account the affidavit of Mr Jordan sworn 10 August 2016. He exhibited to that affidavit copies of offers of settlement made on 2 March 2015 and on 21 September 2015. Also exhibited was a letter written by him to the solicitors for the plaintiff in the form of a Calderbank letter. It can be seen from those exhibits that the defendant attempted to resolve the matter albeit, from the contents of the Calderbank letter, on a factual basis substantially different to my findings at trial. However the attempt was made.

5. No offer of settlement was filed on behalf of the plaintiff. It may be that at the Settlement Conference held on 6 August 2014 that an offer of settlement was made by the plaintiff. Settlement discussions, if they occurred, were confidential.

6. I therefore have to approach this matter on the basis that no offer was filed by the plaintiff. I accept that, given the amount offered by the defendant to settle the claim, the parties may have been “far apart” in terms of settling the dispute; that does not preclude the plaintiff from filing an offer of settlement.

7. I also give weight to the fact that the defendant here is a beneficiary under the will and therefore an order for solicitor/client costs will impact directly on the amount to be distributed.

8. I have considered the question of whether the defendant’s refusal to return to the witness box to complete her cross-examination should be a factor relevant to the question of costs. I accept that her initial absence was covered by a medical certificate. Her later refusal did not lead to any further lost time apart from hearing from Dr Papps. Each case must be decided on its own facts. I consider that in some circumstances a failure to return to the witness box to complete cross-examination may well affect the question of costs. However I do not consider it is a relevant factor in this case.

9. I also have had regard to the usual factors affecting the discretion in relation to costs. I take into account, and give weight to, as discussed the “usual practice”. Taking all these matters into account this is a case where I consider that the appropriate order is one for costs on a party/party basis only.

10. I order that the plaintiff is to have her costs on a party/party basis to be agreed or taxed.