Clone Pty Ltd v Players Pty Ltd (No 14) - [2025] SASC 109

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
CLONE PTY LTD v PLAYERS PTY LTD (No 14)
[2025] SASC 109
Reasons for the Orders of the Honourable Auxiliary Associate Justice Norman
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - INTEREST ON COSTS
Application for interest on the applicant’s costs to be awarded from the date of payments of costs to its solicitors – consideration as to the principles relating to the award of interest on costs – rulings as to interest.
Bankruptcy Act 1966 (Cth) s 82; Civil Procedure Act 2005 (NSW); District Court Act 1991 (SA) s 40; District Court Civil Rules 2006 (SA) rr 101.16, 187; Supreme Court Act 1935 (SA) ss 30C, 114; Supreme Court Civil Rules 2006 (SA) rr 187, 188, 264, 271, referred to.
Burford v Allan [1998] SASC 6693; Chakravarti v Advertiser Newspapers Ltd (1998) 20 LSJS 44; Cilli v Abbott (1981) 53 FLR 108; Clone Pty Ltd v Players Pty Ltd (No 13) [2025] SASC 49; Doppstadt Australia v Lovick & Son Developments [2014] NSWCA 158; Drummond and Rosen Pty Ltd v Easey & Ors (No 2) [2009] NSWCA 331 ; Duke Group Ltd (in liq) v Pilmer (1998) 27 ACSR 1; Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52; Hunt v RM Douglas Roofing Ltd [1990] 1 AC 398; Joseph Lahoud & Anor v Victor Lahoud & Ors [2006] NSWSC 126; Latoudis v Casey (1990) 170 CLR 534; Malaugh Holdings (No 2) Pty Ltd & Anor v Seal & Anor (No 2) [2011] SADC 37; MBP (SA) Pty Ltd v Gojic (1991) 171 CLR 657; Minister Administering the Environmental Planning and Assessment Act 1979 v Carson (1995) 35 NSWLR 342; Newton v Grand Junction Railway Co (1846) 153 ER 1133; Osborne v Kelly (1999) 75 SASR 392; Oshlak v Richmond River Council (1998) 193 CLR 72; Ramadan v ACN 098 408 176 Pty Ltd & Anor (No 3) [2024] SASCA 19; Tarlinton v Hall (1981) 38 ACTR 1; Thomas v Bunn [1981] 1 AC 362; Trevorrow v South Australia (No 6) (2008) 253 LSJS 82, considered.

CLONE PTY LTD v PLAYERS PTY LTD (No 14)
[2025] SASC 109
Civil: Application
Auxiliary Associate Justice Norman
Introduction

This is the continuing taxation (as the legislation and rules considered in these reasons use both the terms adjudication and taxation, for consistency of expression the latter term will be used in these reasons) of the costs of the applicant (“Clone”) of the trial before Vanstone J in these proceedings, ultimately awarded by the High Court against the respondents (“Players”). The taxation having been concluded, the only remaining issues are Clone’s claim for interest on its costs and the costs of the taxation itself. By agreement the interest issue is being determined first.
In essence, Clone submits that it should be awarded interest accruing from the date of payment of each interim…

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.

Keep reading for free

Create a free CaseChat account to read Clone Pty Ltd v Players Pty Ltd (No 14) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] SASC 109
Decision Date: 7 July 2025

CaseChat Overview and Summary

Clone Pty Ltd brought proceedings against Players Pty Ltd, seeking damages for breaches of a lease agreement. After a lengthy trial, judgment was given in favour of Clone, and costs orders were made in its favour. Players appealed the decision, and the matter was remitted for further consideration. Following a series of hearings, the parties settled on a damages payment, which included costs. The central issue in this appeal was the calculation of interest on the costs awarded to Clone. Clone argued that interest should be computed from the date of the judgment that awarded costs, while Players contended that interest should only be computed from the date of the certificate of the taxing officer.

The court considered the statutory provisions governing interest on costs, as well as relevant case law from South Australia and other jurisdictions. The court noted that the original statutory provision only allowed for interest to be computed from the date of the certificate of the taxing officer. However, the provision was amended to grant the taxing officer a wider discretion. The court found that the amendment did not introduce a presumption in favour of computing interest from the date of the judgment, but rather required the court to be satisfied that there were proper grounds for doing so. The court also considered whether there were any countervailing factors that might preclude an earlier computation of interest, such as delay by the party ordered to pay costs or an unreasonable approach to the taxation of costs.

In the end, the court found that there were no proper grounds for computing interest from the date of the judgment. The court noted that Clone had delayed in making contact with Players regarding the costs issues, and that there was no evidence of any unreasonable approach to the taxation of costs by Players. The court held that interest should be computed from the date of the certificate of the taxing officer, as provided by the statutory provisions. The appeal was dismissed, and the orders of the primary judge were affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Players, in contrast, submit that interest on costs should only be computed to commence from the date of the certificate of the taxing officer. They refer to various circumstances going to this issue including the role of the costs offers regime incorporated in the rules. Background chronology Both the substantive proceedings and the taxation of Clone’s costs have been long and complex. Clone’s claim relates to an agreement made in August 1994 for Players to lease premises in the City of Adelaide owned by it. During 2002, a dispute arose between the parties relating to repairs to the premises and on 24 March 2004 Clone issued these proceedings against Players. They came on for hearing before Vanstone J in March 2005. After a 29-day trial, judgment was given for Clone on 22 July 2005, the Court upholding its claims on all but one issue. Costs orders were made in favour of Clone at a hearing before Vanstone J on 18 August 2005. Players appealed to the Full Court which on 4 July 2006 upheld Clone’s claim but overturned one aspect of the trial judge’s conclusions, and it remitted this matter. However, Players’ claim on the remitter was rejected by Vanstone J on 22 September 2006. Players then sought special leave to appeal to the High Court, but this was refused on 10 November 2006. Orders were made by Vanstone J on 19 December 2006 that Players pay the costs of their counter-claim on a relief against forfeiture issue. Questions of the assessment of damages proceeded throughout the latter part of 2007 and into 2008, but in October 2009 this issue was settled by the parties based on a payment, inclusive of costs, by Players to Clone. Players complains that during this period Clone waited for a five-month period, from 10 November 2006 (the date of the High Court’s refusal to grant special leave) to 17 April 2007, to make any contact with Players on the costs issues. On 17 April 2007, without (Players asserts) notice, Clone filed an interlocutory application seeking to dispense with the filing of a short form claim for costs (and thus proceeding immediately with a long form claim) accompanied and supported by an affidavit of its solicitor Mr Mark Hamilton, exhibiting a letter of the same date he had sent to Players’ solicitors, summarising Clone’s claim for costs and disbursements and enclosing a nine-page schedule of costs itemising this, indicating that this was prepared with the principles of the short form claim for costs in mind. The letter advised that the costs of the pre-trial and trial totalled $912,052.13 (exclusive of GST) and it indicated Clone’s confidence that during a formal taxation it would be able to claim all the fees it had incurred in the proceedings. Players complained that the nine-page schedule did not comply with the usual form as it was in a sense a long form claim, however Clone did not proceed with its application. Instead, following 17 April 2007 (a period of seven months) it prepared a short form schedule, which it filed and served on 23 November 2007.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 114(2) originally only prescribed that the taxing officer could award interest on costs from the date of the certificate. However, in 1991 this provision was amended by Parliament to include a wider discretion. The section then provided:Section 114 – Interest on judgment debts (1) All money, including costs, payable under any judgment or order shall bear interest at the rate from time to time prescribed by the rules of court. (2) The interest shall be computed from the following times: (a) in the case of money other than adjudicated costs, from the time specified in the judgment or order, and if no time is so specified from the date of the judgment or order; (b) in the case of adjudicated costs, from the date of the certificate of the adjudicating officer by whom the costs were adjudicated or an earlier date specified by the adjudicating officer in the certificate. (emphasis added) There are similar provisions in other States. An article published by “Interest on Costs Regimes” [2017] by Phillipa Alexander, discusses similar legislative changes in New South Wales, referring to an amendment to the Civil Procedure Act 2005 (NSW) operative from 24 November 2015, and there is reference to New South Wales caselaw including Doppstadt Australia v Lovick & Son Developments.[9] In that case, Gleeson JA (Ward and Emmett JJA agreeing) stated that in the absence of any countervailing discretionary factor, it was appropriate that an order for interest on costs be made to compensate the party having the benefit of a costs order for being out of pocket in respect of relevant costs which it had paid. There was no requirement to establish that the circumstances of the case were out of the ordinary.[10] The learned author of the article indicated that countervailing factors might include vacated hearing dates, unsuccessful interlocutory arguments, or other factors resulting in adverse costs orders, disproportion between the costs and quantum of the claim, and costs incurred in respect of matters which were abandoned or unsuccessful.[9] [2014] NSWCA 158 at [403].[10] Referring to Drummond and Rosen Pty Ltd v Easey & Ors (No 2) [2009] NSWCA 331 at [4] per Macfarlan JA (Tobias JA agreeing) citing Lahoud v Lahoud [2006] NSWCA 126 at [82]-[83] per Campbell J. The parties here have discussed several South Australian cases relating to interest on costs in their submissions. In Burford v Allan,[11] the Full Court discussed the question of interest on costs in the context of a cross-appeal. Under the sub-heading “Cross-appeal” Doyle CJ wrote:[12]An award of costs to a litigant bears interest pursuant to s 114(1) of the Act. In the case of taxed costs, interest is computed from the date of the certificate of the taxing officer … or an earlier date specified by the taxing officer in the certificate. That provision, in my opinion, gives to the master or judge concerned a discretion. The discretion is unfettered and is to be exercised having regard to the facts and to the interests of justice.The starting point is not an award of interest from the date of judgment by virtue of which the party is entitled to costs. There must be some basis for the exercise of the discretion to order that interest to be computed from a time earlier than the date of the certificate, and in particular to order that interest be computed from the date of the relevant judgment. All sorts of matters could be relevant to this question, including delay by the party ordered to pay costs or an unreasonable approach to the taxation of costs which causes delay. Some of the brief remarks made by the master and by the judge are capable of suggesting that the plaintiff had a right to have interest computed from the date of the judgment in her favour, subject only to the defendant establishing some reason to deprive the plaintiff of interest from that earlier date. It may be that that was not what was intended. Reference is made by the master, in particular, to other matters that would support the computation of interest from an earlier date. I immediately make the point that, in my opinion, there is no such presumption about the time from which interest is to be computed, and it is a matter of the Court being satisfied that there are proper grounds upon which interest could be computed from a date earlier than the date of the certificate, and in particular from the date of the judgment that confers the entitlement to costs. [11] [1998] SASC 6693.[12] [1998] SASC 6693 at 8.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.