Cheshire v Jennings (No 3) - [2021] SASCFC 21

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CHESHIRE & ANOR v JENNINGS & ANOR (No 3)
[2021] SASCFC 21
Judgment of The Full Court
(The Honourable Justice Peek, the Honourable Justice Doyle and the Honourable Justice Livesey)
6 April 2021

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS
On 19 February 2021, orders were made by the Full Court allowing the appeal, avoiding the contract between the parties and ordering that the unsuccessful respondents repay the deposit, together with any entitlement to interest, to the appellants. Submissions on costs were received in writing.
The appellants contended that any order made on appeal after the commencement of the Uniform Civil Rules 2020 (SA) comes within r 1.4(1) of those rules, with the result that those rules now apply to the appeal. Accordingly, they submit that the costs of the appeal should be determined in the ordinary way under the Uniform Civil Rules 2020 (SA) and in the discretion of the Court. The appellants appeared to have calculated interest in accordance with r 182.3 of the Uniform Civil Rules 2020 (SA).
The respondents contended that the Fast Track Rules 2014 (SA) apply to both the costs of the trial and the appeal. As for interest, the respondents accept that r 182.3 of the Uniform Civil Rules 2020 (SA) applies to the period after 18 May 2020, but before that date, at the rate specified by r 208 of the Supreme Court Civil Supplementary Rules 2014 (SA).
Held, ordering that the respondents pay the appellants’ costs of both the trial and the appeal:
1. It is not necessary to express a concluded view as to whether the issue of costs should be governed by the new rules or the former rules because the same result would be reached under each.
2. While it is true that determination of the appeal involved one issue of some novelty, none of the points raised on appeal were sufficiently complex or difficult to displace the basis on which the parties had conducted the litigation. Accordingly, the Fast Track Rules 2014 (SA) apply to the costs of the appeal.
3. By reason of r 40(2) of the Fast Track Rules 2014 (SA), and the respondents’ concession that the matter falls within the “high” category of the Fast Track Appeal Scale, the costs of the appeal are fixed in the sum of $6,000.00 in addition to any reasonable disbursements, apart from counsel fees, recoverable in accordance with clause 4 of Schedule 1 to the Fast Track Supplementary Rules 2014 (SA).
4. Interest is to be calculated at the specified rate of 5 per cent from the 18 May 2020 commencement of the Uniform Civil Rules 2020 (SA). Interest accruing before this date should be determined in accordance with the Supreme Court Rules 2014 (SA) and the accompanying supplementary rules.
Uniform Civil Rules 2020 (SA) rr 1.4(1), 182.3 ; Supreme Court Civil…

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.

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Details

Case: [2021] SASCFC 21
Decision Date: 6 April 2021

CaseChat Overview and Summary

In Cheshire v Jennings (No 3), the appellants sought to appeal a decision of the District Court, and the South Australian Court of Appeal was required to determine the appropriate costs orders for both the trial and the appeal. The dispute concerned the application of the Fast Track Rules 2014 (SA) and the Uniform Civil Rules 2020 (SA) to the assessment of costs.

The primary legal issues before the Court of Appeal were whether the costs of the trial and the appeal should be governed by the former Supreme Court Rules 2014 (SA) or the new Uniform Civil Rules 2020 (SA), and how the costs should be quantified under the applicable rules. The court also had to consider the calculation of pre-judgment interest.

The Court of Appeal held that it was unnecessary to definitively determine whether the new or former rules applied to costs, as the same outcome would be reached in either case. The court found that while the appeal involved an issue of some novelty, the points raised were not sufficiently complex to warrant departing from the basis on which the parties had conducted the litigation. Consequently, the Fast Track Rules 2014 (SA) were applied to the costs of the appeal. The court ordered that the respondents pay the appellants' costs of the trial, to be assessed under the Fast Track Rules and Supplementary Rules. Furthermore, the respondents were ordered to pay the appellants' costs of the appeal in the fixed sum of $6,000, plus reasonable disbursements excluding counsel fees, as the matter fell within the "high" category of the Fast Track Appeal Scale. The court also ordered that the respondents pay the appellants pre-judgment interest in the sum of $6,601.65, with interest calculated from the commencement of the Uniform Civil Rules 2020 (SA) and prior to that date in accordance with the Supreme Court Rules 2014 (SA).

Orders

Orders of the court

Held, ordering that the respondents pay the appellants’ costs of both the trial and the appeal:

1. It is not necessary to express a concluded view as to whether the issue of costs should be governed by the new rules or the former rules because the same result would be reached under each.

2. While it is true that determination of the appeal involved one issue of some novelty, none of the points raised on appeal were sufficiently complex or difficult to displace the basis on which the parties had conducted the litigation. Accordingly, the Fast Track Rules 2014 (SA) apply to the costs of the appeal.

3. By reason of r 40(2) of the Fast Track Rules 2014 (SA), and the respondents’ concession that the matter falls within the “high” category of the Fast Track Appeal Scale, the costs of the appeal are fixed in the sum of $6,000.00 in addition to any reasonable disbursements, apart from counsel fees, recoverable in accordance with clause 4 of Schedule 1 to the Fast Track Supplementary Rules 2014 (SA).

4. Interest is to be calculated at the specified rate of 5 per cent from the 18 May 2020 commencement of the Uniform Civil Rules 2020 (SA). Interest accruing before this date should be determined in accordance with the Supreme Court Rules 2014 (SA) and the accompanying supplementary rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

That is the basis upon which the respondents have calculated interest and we see no reason to reject that approach. Accordingly, an amount will be awarded in respect of interest in the sum of $6,601.65. Conclusion We would order as follows:1.The respondents are to pay the appellants pre-judgment interest in the amount of $6,600.00.2.Set aside the costs orders of the District Court Judge, and order in lieu thereof that the respondents are to pay the appellants their costs of the trial pursuant to the Fast Track Rules 2014 (SA) and the Fast Track Supplementary Rules 2014 (SA).3.The respondents are to pay the appellants their costs of the appeal in the amount of $6,000.00 together with reasonable disbursements (except counsel fees) in accordance with clause 4 of Schedule 1 of the Fast Track Supplementary Rules 2014 (SA).

Ratio Decidendi

Legal Principle Established

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