C&a Computer Training Rooms v Bellside Nominees (No 2) No. DCCIV-03-34

[2004] SADC 52

C&A COMPUTER TRAINING ROOMS PTY LTD
v
BELLSIDE NOMINEES PTY LTD (NO 2)
[2004] SADC 52

Judge Lunn
Civil

REASONS ON COSTS

1. On 11 March 2004 I delivered reasons (Judgment No [2004] SADC 38) dismissing much of the plaintiff’s claim, but allowing damages of $3,010, including pre-judgment interest, on an alternative cause of action for wrongful conversion of chattels. I will not repeat what I said in my earlier reasons and these reasons will need to be read in conjunction with them.

2. Both parties have applied for costs.  Insofar as my order will encompass the costs of earlier interlocutory applications I am informed that the costs of them are costs in the cause and none of them were reserved to the trial Judge.  I am not dealing with the reserved costs of an earlier interlocutory appeal to the Supreme Court.  An order of the Supreme Court will be needed to deal with those costs.

3. The plaintiff’s action when commenced sought primarily equitable injunctive relief. Accordingly, Section 42(2) of the District Court Act 1991 and DCR 101.02A have no application as the action is not one “for the recovery of damages or any other monetary sum”: Booth v Beresford (1993) 61 SASR 475.

4. When it was commenced on 13 January 2003 the plaintiff’s action claimed the return of tenant’s fixtures and various chattels.  Prior to the commencement of the action the defendant had denied the plaintiff’s entitlement to all of these items.  However, early in the proceedings the defendant conceded the plaintiff’s entitlement to the chattels.  Eventually all of the chattels were returned except the three chattels which were the subject of the plaintiff’s judgment.  Hence, at the time of its commencement the plaintiff’s action was well founded in claiming the return of all of the chattels.  The principal issue at trial was the plaintiff’s entitlement to the tenant’s fixtures.  On this issue it failed.  The defendant did not seek to protect itself from liability for costs on the successful claim in conversion by making any offer to consent to judgment for the items in question.

5. In making an order for the costs of the action I exercise a broad judicial discretion based on the history of the litigation, as it was revealed to me at the trial and through the submissions on costs, which is to reflect that the plaintiff succeeded on an ancillary claim which occupied little time at trial and in itself would only have been a minor civil action in the Magistrates Court and that the defendant succeeded on the major issue at trial concerning the tenant’s fixtures.  I consider that the justice of the case is met by ordering that the defendant have 75% of the costs of the action and there be no order as to the remaining 25%.

1. I have today entered the following judgment without the attendance of counsel:

   1.Judgment for the plaintiff for $3,010 including pre-judgment interest for damages for conversion.

   2.The other causes of action of the plaintiff are dismissed and the defendant is to have judgment upon them.

   3.The plaintiff is to pay to the defendant 75% of its costs as agreed or taxed of the action in the District Court and there is to be no order as to the remaining 25% of these costs.