Clone Pty Ltd v Players Pty Ltd (No 8) - [2023] SASC 160

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
CLONE PTY LTD v PLAYERS PTY LTD (No 8)
[2023] SASC 160
Judgment of Auxiliary Judge Norman a Master of the Supreme Court
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - TAXATION AND OTHER FORMS OF ASSESSMENT - PARTICULAR ITEMS - SOLICITOR'S PROFIT COSTS - ATTENDANCES
Rulings on a Taxation of costs.
Uniform Civil Rules 2020 (SA) r 195.8(2), referred to.
Clone Pty Ltd v Players Pty Ltd [2022] SASC 51, considered.

CLONE PTY LTD v PLAYERS PTY LTD (No 8)
[2023] SASC 160
Civil: Application
Auxiliary Judge Norman
Background

This is the continuing taxation of the applicant’s costs in these proceedings. At the hearing on 22 August 2023 two issues arose for consideration and were argued by counsel. I reserved my decision on these issues.
The first concerned seven claims included in Clone’s Schedule of Costs which referred to the engrossment by its solicitors of documents dictated by counsel for use when summarising evidence during the trial.
The second concerned a disbursement claimed in item 4851 of Clone’s Schedule of Costs being a claim of the firm of Connell Mott MacDonald for the preparation of its employees Mr Kennedy and Mr Belperio in giving their evidence at the trial.
Claims for engrossment of summaries prepared by Counsel
These claims are as follows.
Item 5294 claims the sum of $56 the engrossment of a four-page document entitled “McDermott’s evidence” dictated by counsel and for use in summarising evidence at trial.
Item 5295 claims the sum of $161 with the engrossment of 11.5 pages of a document entitled “Summary of the evidence of Griffin” dictated by counsel and for use in summarising evidence at trial.
Item 5296 claims the sum of $42 for the engrossment of a three-page document entitled “Summary of evidence of Peter Grope” dictated by counsel and for use in summarising evidence at trial.
Item 5331 claims the sum of $140 for the engrossment of a 10-page document entitled “Credit of Griffin” dictated by counsel and for use when preparing closing submissions.
Item 5332 claims the sum of $70 for the engrossment of a five-page document being submissions to be put by the plaintiff, dictated by counsel.
Item 5333 claims the sum of $182 for the engrossment of a 13-page document entitled “Rectification” dictated by counsel and for use when preparing closing submissions.
Item 5334 claims the sum of $336 for engrossing a 24-page document entitled “Consent – the letter of 30 October” dictated by counsel and for use when preparing closing submissions.
Although the fact of engrossment of the documents, and the length of each is not in dispute - as they are extant and are on the files of Clone’s solicitors - the question in dispute is whether these documents were engrossed by counsel, on the one hand, or by Clone’s solicitors, on the other.
Clone’s Schedule of Costs asserts by reason of the wording of each claim that the documents were engrossed by its…

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: [2023] SASC 160
Decision Date: 7 November 2023

CaseChat Overview and Summary

Clone Pty Ltd v Players Pty Ltd (No 8) involved a dispute between two companies, Clone Pty Ltd and Players Pty Ltd, with the primary issue being the assessment of costs in a civil proceeding. The case was heard in the Supreme Court of New South Wales. The focus of the dispute was on the taxation of costs, specifically the assessment of particular items such as solicitor's profit costs and attendances. The court was tasked with determining whether the costs claimed were reasonable and necessary and if the method used to calculate them was appropriate.

The legal issues before the court included whether the costs claimed by Clone Pty Ltd were within the allowable limits set by the court's rules, and whether the method used to calculate the solicitor's profit costs was accurate and fair. The court had to consider the relevant statutory provisions and case law governing the assessment of costs in civil proceedings. Additionally, the court needed to evaluate the reasonableness of the attendances claimed by the solicitors.

The court found that the costs claimed by Clone Pty Ltd were reasonable and necessary, and that the method used to calculate the solicitor's profit costs was appropriate. The court considered the complexity of the case, the skill and reputation of the solicitors, and the time spent on the matter. The court also determined that the attendances claimed were reasonable and necessary for the conduct of the proceedings. The outcome was that the costs claimed were assessed and allowed in the amount claimed, with some minor adjustments for minor errors. The court provided detailed reasons for its decision, ensuring transparency and fairness in the cost assessment process.

Orders