Clone Pty Ltd v Players Pty Ltd (No 15) - [2025] SASC 173

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
CLONE PTY LTD v PLAYERS PTY LTD (No 15)
[2025] SASC 173
Reasons for the Orders of the Honourable Auxiliary Associate Justice Norman
PROCEDURE- CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS- COSTS- REVIEW OF ORDER ON TAXATION
Application for review of orders awarding interest on the applicants’ costs - consideration as to the principles relating to a review of a taxation of costs - rulings on review.
Supreme Court Rules 1987 (SA) [ceased] r 101.21(2); Supreme Court Civil Rules 2006 (SA) [ceased] rr 187, 271(6), 276, 278, 279; Uniform Civil Rules 2020 (SA) rr 13.2, 195.8, 195.9, 195.10, 195.12, referred to.
Catto & Ors v Hampton Australia Ltd (In Liq) & Ors [2008] SASC 231; Clone Pty Ltd v Players Pty Ltd (No 13) [2025] SASC 49; Clone Pty Ltd v Players Pty Ltd (No 14) [2025] SASC 109; Orio Holdings Pty Ltd & Anor v Costi & Co [2008] SASC 218; Osborne v Kelly (1999) 75 SASR 392, discussed.
Australian Coal and Shale Employees’ Federations and Another v The Commonwealth and Others (1953) 94 CLR 621; Baronglow Pty Ltd v Willing and Thomas (Intervenor) DC (SA) Action No 107 of 1995, reasons published 2 October 2008 (unreported); Bennett v Seaman (1993) 117 ACTR 1; Cachia v Westpac Financial Services Ltd [2003] FCA 817; Collins v Djunaedi [2023] SASCA 97; Dalgety Aust Operations Ltd v F F Seeley Nominees Pty Ltd (No 2) (1988) 49 SASR 75; Eaves v Eaves and Powell [1956] P 154; Hall v City of Burnside [2023] SASC 173; House v The King (1936) 55 CLR 499; In the Estate of Ogilvie (1910) P 243; Joseph Lahoud & Anor v Victor Lahoud & Ors [2006] NSWSC 126; Keogh v Keogh (1905) 11 ALR (CN) 38; Kuek v Devflan Pty Ltd and Anor [2009] VSC 91; Kuek v Devflan Pty Ltd & Anor [2011] VSCA 25; Kuek v Devflan Pty Ltd and Anor [2012] VSC 327; Law Society of South Australia v Jordan (1998) 198 LSJS 434; Leda v Weerden (No 3) [2006] NSWSC 220; Laurence Tai Pty Ltd v Eric & Ors v Knox and Hargraves DC (SA) Action 614 of 1993, reasons published 19 January 2000 (unreported); Malaugh Holdings (No 2) Pty Ltd v Seal & Others Anor DC (SA) Actions 1453 of 2002 and1388 of 2003, reasons published 19 August 2009 (unreported); Ocean Marine-Tech Pty ltd & Ors v BMW Australia Ltd DC (SA) Action 4017 of 1991, reasons published 14 March 2001 (unreported); Re Gibson’s Settlement Trusts, Mellors v Gibson [1981] 1 All ER 233; Re Melbourne Parking Station Ltd (1929) 34 ALR 398; Schweppes’ Ltd v Archer (1934) 51 WN (NSW) 71; Slingsby v Attorney General (1918) P 236; Spencer v GMG Legal Services Pty Ltd [2013] SASC 19; Swan v Bank of New Zealand (1890) 24 SALR 20; Clark, Tait & Co v Commissioner of Taxation…

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: [2025] SASC 173
Decision Date: 16 October 2025

CaseChat Overview and Summary

The parties in this case were Clone Pty Ltd and Players Pty Ltd, with the dispute primarily concerning the interest on costs awarded in Clone's favour. The case was heard in the Supreme Court of South Australia. The main legal issue that the court had to decide was whether the lump sum approach taken to calculate the interest on costs was appropriate and if the interest amount awarded was correct. Players Pty Ltd sought a review of the order on taxation, arguing that the interest amount awarded to Clone Pty Ltd was incorrect.

The court considered the submissions made by both parties and deliberated on the approach taken to calculate the interest on costs. The court noted that the dispute arose from the two-stage process of determining the interest on costs, and Players Pty Ltd argued that the interest amount awarded should have been calculated based on the actual dates of expenditure rather than a fixed period. However, the court found that the lump sum approach was appropriate, and there was no error in the exercise of the discretion in awarding the interest. The court also found that Players Pty Ltd had mischaracterised the purpose and intention of the orders made in Clone Pty Ltd v Players Pty Ltd (No 14). The court concluded that the $125,000 lump sum interest award was appropriate.

In conclusion, the court dismissed Players Pty Ltd's application for a review of the order on taxation. The court found that the lump sum approach taken to calculate the interest on costs was appropriate, and the $125,000 interest amount awarded to Clone Pty Ltd was correct. The court's decision was based on the reasoning that the two-month period was an indicative date rather than a rigid mathematical calculation, and there was no error in the exercise of the discretion in awarding the interest. The court did not set aside the 7 July 2025 orders on review, and the interest amount awarded to Clone Pty Ltd remained unchanged.

Orders

Orders of the court

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Background

Background to the litigation

The taxation itself has concluded, and 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. Background Initially, a dispute arose as to the mechanism for the determination of the interest issue, by reason of the Court having been informed that following the service of Clone’s claim for costs, Players had served three offers for those costs including interest thereon. Players had sought a two-stage process wherein a determination should first be made as to the point in time when Clone’s entitlement to interest commenced to run (stage one), and secondly, after that determination, and based on the Court’s ruling, calculations could be made as to Clone’s actual interest on its costs entitlements, relying on the amounts allowed for the three individual costs components being, solicitors’ fees, counsel fees and disbursements up to and including the date of the offers (stage two). In Clone Pty Ltd v Players Pty Ltd (No 13)[1] dated 11 April 2025 (Reasons No 13) the Court ordered that the award and assessment of interest was to be undertaken in two separate hearings.[1] [2025] SASC 49. Argument on the first of those hearings was heard and in Clone Pty Ltd v Players Pty Ltd (No 14)[2] dated 7 July 2025 (Reasons No 14) orders were made in relation to stage one, awarding Clone interest on its costs. Although neither party had made submissions on the issue, the Court determined that adopting a lump sum approach was appropriate and accordingly assessed interest in a lump sum of $125,000. [2] [2025] SASC 109. It is that order which Players now seeks to review. They did so by way of a letter to the Court dated 18 July 2025, to which Clone responded with submissions dated 18 August 2025, with responding submissions filed by Players on 19 August 2025. Oral submissions were presented at a hearing on 19 August 2025 when Mr B Roberts KC of counsel appeared for Clone, and Mr R Whitington KC of counsel appeared for Players. I reserved my decision.The review process Clone lodged its long form claim for costs on 11 March 2008, and as this was a “step in the proceedings”, the applicable rules governing this taxation of costs are the Supreme Court Civil Rules 2006 (SA) (“the 2006 Rules” or “Rule”). Rule 276 provides that if costs are taxed by a Master (which is occurring here), the Master will, in the first instance, make a provisional order for the payment of costs or any other amount found to be payable on the adjudication. This is defined as a provisional costs order. Rule 278 provides that a party who is dissatisfied with a provisional costs order may, within 14 days after the date of the order, apply for a review of the order by a Master. An application for review must specify, in detail, the applicant’s objection to the decisions made on the adjudication. If the provisional order was made by a Master, the review will, as a general rule, be in the nature of a reconsideration by the Master who made the order. It is not disputed that as an Auxiliary Associate Justice of the Court, I am, or ought properly to be considered, to be a Master for the purposes of the 2006 Rules.Players’ submissions on their application for a review

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The difficulties and intricacies of attempting to reconcile these considerations, even if some were capable of mathematical calculation (the others not) was such that in accordance the observations of the Full Court with Osborne v Kelly[52], I fixed a global lump sum. Consideration[52] (1999) 75 SASR 392.First Ground of Review Players’ do not complain as to the exercise of the Court’s discretion or to the identification of the discretionary considerations, nor as to the allowance in Reasons No 14 of an additional period of two months within which for Clone to consider the offers made by Players. Further, there is no challenge to the Court adopting a lump sum approach, nor to the factors relied upon by it in exercising that approach. Rather, the essence of Players’ complaint is in the consequence which follows, namely, the application of a determined and defined period to Clone’s calculation of interest based on the principal amount set out in its Schedule 1. The Court in Reasons No 14 decided that Clone be allowed a reasonable time to consider and respond to any offer between 20 February 2008 and 30 November 2008, its finding being that two months would be a reasonable time, which took the date to 20 April 2008 for Clone to respond to that offer. Schedule 1 comprised two tables, one setting out calculations made to 30 November 2008, and the other to 20 February 2008. Each table contained a middle column identifying the principal amounts, with the right-hand column reflecting the corresponding interest calculations. The starting point was an assumed date of payment on the date of the costs order being 18 August 2005. However, Players’ scenario C showed that using Clone’s calculations of interest, based upon its asserted actual incurral of expenditure, some part of that expenditure must have occurred after 18 August 2005. They contend that if one calculates an additional two months of interest (from 20 February 2008 to 20 April 2008) using Clone’s figures in Schedule 1, and add that additional two months’ worth of interest to the $106,276.32 figure in Schedule 1, one will arrive at a total interest amount of $113,830.32, which is approximately $11,000 less than the $125,000 lump sum interest awarded. This reduced interest figure of $113,830.32 is accordingly the precise and actual amount of interest which should be awarded to Clone based upon a calculation reflecting the reasoning, in lieu of the $125,000 awarded. However, in response Clone contends that Players in seeking to impose a rigid “cutoff date” at which the interest calculation ceased, have mischaracterised the purpose and intention of the 7 July 2025 orders, and further, it says that there was no principle involved which compelled the exercise of the discretion in that manner. Accordingly, no error had been alleged such as to invoke the power to set aside the 7 July 2025 orders on review. I note that the discussion of interest cutoff dates had occurred in the context of competing “end points.” Clone advocated for a date of 30 November 2008, or alternatively an earlier date of 20 February 2008. In deciding which of these two was to be preferred, I adopted a middle ground, providing to Clone an allowance in favour of its primary position for considering the offers. The intention of a two-month period was an indicative date, rather than one adopted for the purpose of sustaining a rigid mathematical calculation.