SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
CHARITOPOULOS & ORS v DJH CROWD MANAGEMENT (No 2)
[2009] SASC 241
Reasons of Judge Lunn a Master of the Supreme Court
14 August 2009
PROCEDURE - COSTS
Costs on an interlocutory order refusing extension of time for caveat to be payable forthwith - bankruptcy of a plaintiff and substitution of his trustee precluding any set off on costs - fixing party and party costs at a lump sum - process applicable - not reduction on amounts charged as between solicitor and own client but fixing amounts for items of work done - lump sum fixed.
CHARITOPOULOS & ORS v DJH CROWD MANAGEMENT (No 2)
[2009] SASC 241Reasons on defendant’s applications for costs to be fixed as a lump sum and to be payable forthwith.
JUDGE LUNN:
Background.
Pantelis Charitopoulos, Marina Nikolakakis and Rosa Charitopoulos (“the initial plaintiffs”) instituted this action on 19 December 2008. The only relief sought in their summons was an extension of the time for the removal of a caveat which they had previously placed over land in South Australia owned by the defendant to secure repayment of an alleged loan by them to the defendant. The defendant is a company which carries on business in Victoria. It denies it was the borrower and has warned the caveat. On 19 December the initial plaintiffs took out an interlocutory application seeking an order for the extension of the caveat. At a hearing on 22 December I extended the caveat until 22 January 2009, gave directions for the filing of affidavits and set 20 January for the hearing of an argument about whether the caveat should be further extended. On 20 January I heard the argument and reserved my decision. I further extended the caveat until further order to allow me to consider my judgment. At a hearing on 11 February I discharged the order for the extension of the caveat but stayed the operation of the order until 16 February for the initial plaintiffs to consider whether they wished to appeal. I ordered that the initial plaintiffs were to pay to the defendant its costs of the interlocutory application as agreed or adjudicated upon. On 16 February I was informed there would be no appeal and I gave directions for the initial plaintiffs to extend their claim by filing a statement of claim seeking further relief other than the extension of the caveat.
In early May 2009 the first initial plaintiff, Pantelis Charitopoulos, was declared bankrupt and Phillip Aggs became his trustee in bankruptcy. On 26 May 2009 I gave permission to substitute that trustee for Pantelis Charitopoulos as the first plaintiff in the action. This was not done properly, but has been subsequently amended to make the action heading correctly read that it is between the initial plaintiffs up until 26 May 2009 and thereafter between Phillips Aggs, Marina Nikolakakis and Rosa Charitopoulos as plaintiffs and the defendant.
By an application of 16 June 2009 the defendant has…
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- Case
- [2009] SASC 241
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the costs should be payable forthwith and, if so, how they should be quantified. The court had to consider whether the circumstances warranted immediate payment of the costs, given the conclusion of the discrete issue of the caveat and the potential for a lengthy resolution of the principal proceedings. Additionally, the court needed to determine the appropriate method for fixing the lump sum for the costs, considering the bankruptcy of one of the plaintiffs, which precluded any set-off against future costs orders.
The court exercised its general judicial discretion to order that the costs be payable forthwith. It reasoned that the costs related to a concluded discrete issue, the principal proceedings were likely to be lengthy, and the bankruptcy of one plaintiff eliminated the possibility of set-off against future costs orders. In fixing the lump sum, the court applied a process that did not involve reducing the amounts charged between the solicitor and the client but rather determined the appropriate sum for the work done. The court fixed the lump sum for the costs accordingly.
The final orders included the direction that the costs ordered on 11 February in favour of the defendant be payable forthwith and that those costs be fixed at a lump sum as determined by the court.
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