Collins v Djunaedi - [2023] SASCA 97

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
COLLINS v DJUNAEDI
[2023] SASCA 97
Judgment of the Court of Appeal
(The Honourable Justice Doyle and the Honourable Justice Bleby)
14 September 2023
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT - GENERALLY
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - TAXATION AND OTHER FORMS OF ASSESSMENT - APPEAL, REVIEW OR REFERENCE - PROCEDURE AND EVIDENCE - MODES OF APPEAL, REVIEW OR REFERENCE
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - GENERALLY
Appeal against orders of Judge Dart sitting as a Master of the Supreme Court and hearing a taxation of costs.
The respondents were the plaintiffs in District Court proceedings commenced in 2015; the applicants were the defendants. The respondents were successful in their action and obtained summary judgment against the applicants. The applicants appealed that decision. They were unsuccessful and were ordered to pay the respondents costs of the appeal.
The respondents applied for a taxation of their costs of appeal by filing a claim for costs under r 195.2 of the Uniform Civil Rules 2020 (SA). An administrative judgment was entered by a Deputy Registrar.
Judge Dart set aside this judgment and proceeded to make a lump sum assessment of the respondents’ costs in the amount of $31,000. His Honour subsequently heard submissions on outstanding costs issues, being the costs of the application to set aside the default costs judgement, and the costs of the taxation process itself.
As to the former, he held that the applicants were entitled to 50 per cent of their costs of setting aside the default costs judgment. This was on the basis that whilst they were technically successful and costs would ordinarily follow the event; the application had a number of different heads, and the applicants were unsuccessful in relation to a number of grounds.
As to the costs of the taxation, Judge Dart noted the applicant’s lack of cooperation in the process and held that the respondents were entitled to their costs of the taxation on a party/party basis, but with a 20 per cent uplift to reflect the Court’s disapproval of the applicant’s conduct.
The applicants seek to challenge the orders made by Judge Dart on various grounds.
Held (per the Court), refusing leave to appeal and refusing an extension of time:
1.Leave to appeal is required to appeal an order or judgment that “relates to costs” (r 213.1(c)).
2.Appeals against orders made in a taxation of costs should generally be heard by a single judge, rather than by the Court of Appeal.
3.The applicants’ proposed grounds of appeal are lacking in merit, and do not raise any matter of general principle or importance. Nor would there be any substantial injustice to the applicants were the orders left to stand.

Supreme Court Act 1935 (SA) s 50; Uniform Civil Rules 2020 (SA) rr 2.1, 195.1, 195.2, 195.3, 195.9, 195.13, 196.1, 213.1, 214.2, referred to.
Adam P Brown Male Fashions Pty Ltd v Philip Morris Ltd (1981) 148 CLR 170; Bayley & Associates Pty Ltd v DBR Australia Pty [2014] FCA 346; Burford v Allen [1998] SASC 6693; Collins & Anor v Djunaedi & Ors [2016] SASCFC 48; Coulls v Bagot’s Executor & Trustee Co Ltd (1967) 119 CLR 460; Djunaedi & Ors v Collins & Anor [2015] SADC 120; Jackson v Lepp Investments Pty Ltd [2016] SASC 62; M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27; Ouwens Casserley Real Estate Pty Ltd v Harcourts South Australia Pty Ltd [2017] SASCFC 69; Pix v South Australian Housing Trust [2016] SASCFC 57; Richani v Martins Plaza Shopping Centre Pty Ltd (No 2) [2022] SASCA 98; Southern Wire v Clover Communications [2023] SASCA 18; Wyness v Roenfeldt [2023] SASCA 77, considered.

COLLINS v DJUNAEDI
[2023] SASCA 97
Court of Appeal – Civil: Doyle and Bleby JJA

THE COURT: The applicants seek to appeal orders made by Judge Dart on 4 May 2023, sitting as a Master of the Supreme Court and hearing a taxation of costs. For the reasons which follow, leave to appeal is required and should be refused.
Background
The proceedings have had a long and difficult history.
The respondents were the plaintiffs in District Court proceedings commenced in 2015; the applicants were the defendants. The respondents were successful in their action and obtained summary judgment against the applicants in an amount of $423,656.25.[1] The claim related to fraudulent conduct of the applicants that caused the respondents to invest and lose a significant sum of money.
[1] Djunaedi & Ors v Collins & Anor [2015] SADC 120.
The applicants appealed that decision to the Full Court. The appeal was dismissed, and the applicants were ordered to pay the respondents’ costs of the appeal.[2] Indeed, in upholding the primary judge’s decision that there was no reasonable basis on which to defend the proceedings, the Chief Justice described the proposed defence as “an audacious attempt to perpetrate on the Court the same fraud perpetrated on the plaintiffs.”[3]
[2] Collins & Anor v Djunaedi & Ors [2016] SASCFC 48.
[3] Collins & Anor v Djunaedi & Ors [2016] SASCFC 48 at [44] (Kourakis CJ).
In January 2022, the respondents applied for a taxation of their costs of the appeal by filing a claim for costs under r 195.2 of the Uniform Civil Rules 2020 (SA), seeking an amount of $35,957.21. The applicants filed a response to that claim denying liability for each and every line item and opposing the respondents’ entitlement to any costs at all. Their response stated that the appropriate quantum of costs was zero.
The respondents considered that this response did not comply with r 195.3(1) and requested that the Registrar enter a default costs judgment in their favour under r 195.3(3). An administrative judgment was entered by a Deputy Registrar.
On 23 February 2023, Judge Dart set aside this judgment on the basis that there had been technical compliance with r 195.3(1), but added that the response filed by the applicants was arguably an abuse of process that might have been struck out.[4] His Honour said that it was “clearly not a good faith response.”[5]
[4] Collins & Anor v Djunaedi & Ors (Judge Dart, 23 February 2023, unreported) at [19].
[5] Collins & Anor v Djunaedi & Ors (Judge Dart, 3 May 2023, unreported).
Judge Dart proceeded to make a lump sum assessment of the respondents’ costs in the amount of $31,000. In explaining this decision,[6] his Honour said that the claimed amount of $35,957.21 was modest; and that the issue of costs had occupied too much time and effort, and needed to be finalised. His Honour noted the taxing officer’s power to make a lump sum assessment under r 195.9(1), and the principles governing the exercise of that discretion.[7] He referred to the submissions made by the parties on the topic, and the applicants’ amended response accepting a liability to pay slightly less than $20,000 in costs. His Honour said that a broad-brush approach was called for, and that, having regard to all of the above, an amount of $31,000 was appropriate.
[6] Collins & Anor v Djunaedi & Ors (Judge Dart, 23 February 2023, unreported) at [21]-[25].
[7] As summarised by Foster J in Bayley & Associates Pty Ltd v DBR Australia Pty [2014] FCA 346 at [17].
Judge Dart subsequently heard submissions in relation to two outstanding issues: the costs of the application (FDN 27) to set aside the default costs judgment entered by the Deputy Registrar, and the costs of the taxation process itself. He delivered reasons in relation to these issues on 3 May 2023.[8]
[8] Collins & Anor v Djunaedi & Ors (Judge Dart, 3 May 2023, unreported).
As to the former, his Honour noted that “technically” the application to set aside had been allowed, and that costs would ordinarily follow the event. He noted, however, that the application “had a number of different heads and the appellants were unsuccessful in relation to a number of the grounds.” His Honour considered it appropriate to allow the applicants 50 per cent of their costs of the application to set aside the default costs judgment.
As to the costs of the taxation process, Judge Dart described the applicants’ lack of cooperation in that process:
The [applicants] have not cooperated particularly in that process. For a long time they asserted that there were no costs payable at all, notwithstanding the fact that there was a costs order. There was at one stage a suggestion that the costs should be allowed in the amount of $5. The respondents have been put to unnecessary expense and delay in relation to what should have been a relatively straightforward taxation of a modest claim.
His Honour noted that the respondents had made a written offer to accept $22,000 for its costs. Whilst the offer did not formally comply with r 195.1 (because it imposed terms of payment), it was nonetheless “the fact of the matter” that the applicants could have resolved the issue of costs for much less than the $31,000 they were now obliged to pay.
Judge Dart decided to award the respondents their costs of the taxation process on a party/party (or standard costs) basis, but with a 20 per cent uplift to reflect the Court’s disapproval of the applicants’ conduct. His Honour explained:
Of course discretion in relation to costs is found in s 40 of the Supreme Court Act. It gives the court a broad discretion to make an order for costs in the interest of justice. I am not satisfied that an indemnity costs order should be made for several reasons, one including non strict compliance with r 195, and the failure to file a formal offer. However, I do accept that the appellants acted unreasonably and made the process longer and more expensive than it should have been. I think the justice of the situation can be met with an unusual order.
The order I would make is that the costs of the taxation is to be paid by the appellants on a party/party basis but that the respondents will receive, once those costs are taxed, a 20% uplift on the amount to reflect the court’s disapproval of the conduct of the appellants.
On 3 May 2023, his Honour made orders in the following terms:
1.     The default judgment FDN 24 is set aside.
2.     In lieu of the default judgment an allocatur is to issue in the amount of $31,000.
3.     The appellants are to have 50% of the costs of and incidental to application FDN 27.
4.The respondents are to have the costs of the taxation on a standard costs basis subject to an uplift of 20% on the amount found due after the taxation.
5.I make an order pursuant to section 8 of the Enforcement of Judgment Act 1991 that the land comprised in Certificate of Title Register Book Volume 5446 Folio 43 (parent title CT 4031 Folio 32) registered in the name of the Second Appellant situated at 3 Tasman Court, Hackham in the State of South Australia be charged with the judgment sum owing to the respondents in the amount of $31,000.
6.I make an order pursuant to section 64 of the Real Property Act 1886 that the Registrar General record a sealed copy of this Order on Certificate of Title Register Book Volume 5446 Folio 43 (parent title CT 4031 Folio 32).
7.     Liberty to apply.
The application for leave to appeal
By their notice of appeal, the applicants challenge orders 2-6 made by Judge Dart on the following grounds:
1.   With respect to order 2:
1.1.the learned Master erred in not following Coulls v Bagot’s Executor and Trustee Co Ltd (1967) 119 CLR 460;
1.2.the learned Master failed to afford procedural fairness to the Appellants in fixing costs instead of entering an interim allocator and then proceeding to a taxation as the process adopted prevented the Applicants from challenging the basis of the retainer asserted by the solicitors for the claimants for costs;
1.3.having found that no genuine offer had been made prior to the filing of the claim for costs, ought to have dismissed the Claim for Costs; and
1.4.in the alternative to ground 1.1, erred in finding that only two respondents to the appeal in matter SCCIV-15-1477 had not joined in the claim for costs when in fact five respondents to the appeal had not joined, and ought not then have concluded that the proportion of costs of the appeal awarded to the claimants for costs was warranted if at all on the basis that the costs claimed were the claimants’ for costs fair share of costs.
2.   With respect to order 3:
2.1.consequential upon the finding that no genuine offer had been made by the claimants for costs prior to its filing and the obtaining of a default judgment ex parte and consequential on the setting aside of order 2, the learned Master erred in the exercise of his discretion to award only 50% of the Appellant’s costs of setting aside the default judgment.
3.   With respect to order 4:
3.1.consequential upon the finding that no genuine offer had been made by the claimants for costs prior to its filing and the obtaining of a default judgment ex parte and consequential on the setting aside of order 2 (FDN69, page 1), the learned Master erred in the exercise of his discretion to award the claimants their costs of the taxation.
4.   With respect to order 5:
4.1.for the reasons giving rise to the setting aside of order 2 and consequential upon it being set aside, the learned Master erred in entering the order.
5.   With respect to order 6 the learned Master erred:
5.1.in making an order against the Registrar who was not a party to, or on notice of the application;
5.2.as s64 of the Real Property Act does not confer power on the Court to make the order in the circumstances.
The appeal is out of time. Before addressing the application for an extension of time, it is convenient to address the need for leave to appeal.
The applicants contend that they are entitled to appeal as of right against order 2. In support of this, they rely upon r 196.1, which states that following completion of a taxation, a party may appeal by filing a notice of appeal in accordance with r 214.2. They further contend that because the challenges to orders 5 and 6 are consequential upon the success of the challenge to order 2, leave should not be required to challenge these orders. It seems that the applicants accept that leave is required in relation to their appeal against orders 3 and 4.
The applicants’ submissions misunderstand the operation of r 196.1. Read literally, r 196.1 could be seen as conferring a right of appeal. However, properly understood, the rule is merely confirmatory of the right to appeal that already exists under s 50(1)(b) of the Supreme Court Act 1935 (SA). Under that section, an appeal lies against a judgment of the court constituted of a master; and under r 195.13, an order made during or following a taxation of costs is a judgment of the court.
In any event, regardless of whether r 196.1 confers, or merely confirms, a right of appeal, it is silent as to whether or not that right of appeal is subject to a requirement of leave to appeal. The reference in that rule to r 214.2 is neutral; it is a reference merely to the mechanism or procedure through which the appeal is to be instituted. Rule 214.2 does not presuppose that an appeal is as of right. To the contrary, it merely describes the obligation to file a notice of appeal, and prescribes the matters that must be contained in that notice of appeal. Indeed, r 214.2(1)(f) expressly provides that if leave to appeal is sought, then the notice of appeal must set out the grounds on which it is sought.
Under s 50(4)(b) of the Supreme Court Act, leave to appeal is required if the rules so provide. Bearing in mind that r 196.1 must be construed in the context of the balance of the rules, it is necessary to have regard to r 213.1, which addresses the circumstances in which leave to appeal will be required. In particular, r 213.1(1)(c) requires leave to appeal where an appeal is against an order or judgment that “relates to costs.” Order 2 of the orders made by Judge Dart reflects the outcome of a taxation of costs. The appeal against that order is an appeal against a judgment or order that relates to costs.
It is not to the point that the order made by Judge Dart was made in the context of a taxation of costs, as opposed to an order for costs made during the course of the interlocutory stages of the proceedings or by the trial judge or appeal court. To the extent that such distinctions might previously have been relevant,[9] they are no longer relevant. The reference to “relates to costs” in r 213.1(1)(c) is broad and unqualified, and extends to appeals arising out of orders made in the context of a taxation of costs.
[9] See, for example, under the now repealed s 50(2)(b) of the Supreme Court Act which required leave where the appeal was “as to costs only which by law are left to the discretion of the judge”; as discussed in Burford v Allen [1998] SASC 6693 at [3] (Doyle CJ, Millhouse and Nyland JJ agreeing).
In an effort to avoid the apparent breadth of r 213.1(1)(c), the applicants point out that the introductory words of r 213.1(1) make its operation “[s]ubject to any statute to the contrary.” Noting that “statute” is defined in r 2.1 to include “these Rules and any rules of court”, the applicants seek to rely upon r 196.1 as providing for an appeal as of right contrary to r 213.1(1)(c). However, as already explained, r 196.1 must be read in conjunction with r 213.1. This is not an instance of a more specific provision (r 196.1) that prevails over a more general provision (r 213.1). To the contrary, r 196.1 merely recognises a right of appeal that must be exercised in conformity with not only r 214.2 (governing the form of the notice of appeal), but also r 213.1 (governing the circumstances in which leave to appeal is required).
Leave is required to appeal against order 2, and indeed against each of the orders sought to be appealed.
Forum of the appeal
Whilst not a point taken by the respondents, it is our view that this appeal (and accompanying application for leave to appeal) should have been brought to a single judge rather than the Court of Appeal.
Under s 50(2) of the Supreme Court Act, an “appeal against a judgment of a master … lies, if the rules so provide, to the Court of Appeal and otherwise to the court constituted of a single judge.”
Whilst r 196.1 provides that the present appeal be instituted by filing a notice of appeal in accordance with r 214.2, that rule does not determine whether the appeal lies to a single judge or the Court of Appeal. It is neutral in that respect, providing merely that the notice set out “the forum of the appellate court” (r 214.2(1)(a)).
The appropriate forum for the appeal is addressed in r 212.2 (jurisdiction of a single judge) and r 212.3 (jurisdiction of the Court of Appeal). In relation to decisions made by a master, the appeal lies to a single judge if it is against an “interlocutory decision (order or judgment)” (r 212.2(1)(a)) and to the Court of Appeal if it is against a “final decision (judgment or order)” (r 212.3(1)(a)). The forum of the appeal thus depends upon whether the decision under appeal is interlocutory or final.
There are two qualifications to this general position. The first is that certain types of decisions by masters, being decisions made under Chapter 19 Parts 3 (arbitration proceedings), 5 (caveat proceedings), 11 (possession of land proceedings), 12 (pre-action discovery proceedings), 13 (pre-action search or freezing order proceedings), 15 (registration of judgments), 16 (taking evidence for a foreign court) or 17 (transferred proceedings) of the Uniform Civil Rules, lie to a single judge regardless of whether the decision is interlocutory or final. This first qualification has no application in the present case because the Master’s orders were made in taxation of costs proceedings under Chapter 16 Part 5 of the Uniform Civil Rules.

The second qualification arises because r 212.2(1) is expressed to be subject to r 212.2(2) and r 212.3; and r 212.3(1) is expressed to be subject to r 212.3(2). Rule 212.2(2) provides that “[s]ubject to a statute conferring jurisdiction on a single Judge in absolute terms, a Judge may order that the appellate jurisdiction of the Supreme Court that would otherwise be exercised by a single Judge be exercised by the Court of Appeal.”[10] And r 212.3(2) provides, in equivalent terms, for the jurisdiction of the Court of Appeal to be exercised by a single judge.[11] We shall return to the potential significance of this second qualification shortly.
[10] With the Court of Appeal then having jurisdiction to hear that appeal under r 212.3(1)(f).
[11] With the single judge then having jurisdiction to hear that appeal under r 212.2(1)(i) or (j).
It seems to us that the orders sought to be appealed in the present case are interlocutory in nature. Certainly orders 3 and 4 (which relate to the costs of the application (FDN 27) to set aside the default costs judgment, and the costs of the taxation process) appear to be of that character. An argument might be made that order 2,[12] being an order quantifying a costs order made ancillary to a final order dismissing the applicants’ appeal is final. Whilst we favour the view that order 2 is nevertheless interlocutory, we do not consider it necessary to express a concluded view about this. Even if one or more of the orders made in the taxation were, strictly speaking, final in character, an appeal from those orders would be an obvious candidate for an order under r 212.3(2) that the appeal nevertheless be heard by a single judge.
[12] And perhaps consequentially, orders 5 and 6.
Whilst future appeals against orders made in a taxation of costs should generally be heard by a single judge, it would only cause further expense and delay were this matter to be referred to a single judge. The Court of Appeal having been seized of the appeal (and the associated application for leave to appeal), it is appropriate that it proceed to determine the matter.
The determination of the application for leave to appeal
The question of whether leave to appeal should be granted depends upon consideration of the following:[13]
·whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal;
·whether the decision raises an issue of general principle or importance; and
·whether allowing the decision to stand would work a substantial injustice to the applicant.
[13] Wyness v Roenfeldt [2023] SASCA 77 at [29] (Livesey ACJ and Bleby JA); Southern Wire v Clover Communications [2023] SASCA 18 at [53] (Livesey P and Bleby JA); M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27 at [7] (Doyle and Livesey JJA).
These considerations must be applied against the backdrop of the jurisdiction that was exercised in making the decision under appeal.[14] In the present circumstances, that backdrop involves a taxation of costs by a master who is a taxing officer under the rules, and hence has particular expertise in determining issues in relation to the quantum of costs.[15] Further, the decision sought to be appealed, whilst including an order requiring payment of a sum of money, relates to a matter of practice and procedure, rather than the substantive rights of the parties in dispute in the proceedings. As such, it is appropriate that the Court exercise caution before granting leave to appeal.[16] Appeals on costs should not be encouraged.[17]
[14] Wyness v Roenfeldt [2023] SASCA 77 at [30] (Livesey ACJ and Bleby JA).
[15] As to the substantial weight to be given to the conclusions of a specialist decision maker with particular expertise, see Pix v South Australian Housing Trust (2016) 125 SASR 10 at [3] (Kourakis CJ, Bampton and Doyle JJ agreeing), applying Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1 at [19] (Parker J).
[16] Richani v Martins Plaza Shopping Centre Pty Ltd (No 2) [2022] SASCA 98 at [5] (Livesey P and Doyle JA); Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 (Gibbs CJ, Aickin, Wilson and Brennan JJ).
[17] Ouwens Casserley Real Estate Pty Ltd v Harcourts South Australia Pty Ltd [2017] SASCFC 69 at [7] (Kourakis CJ, Peek and Stanley JJ).
It is convenient to commence by reviewing the merits of the proposed grounds of review before returning to address the balance of the considerations relevant to whether there should be a grant of leave to appeal.
Merits of the proposed grounds of appeal
Grounds 1.1 and 1.4
These grounds arise out of the decision of some of the respondents not to participate in the taxation process.
There were initially 11 plaintiffs in these proceedings, and hence 11 respondents to the Full Court appeal to which the taxed costs relate. Five of these respondents did not participate in the taxation before Judge Dart. In his reasons dated 23 February 2023, the judge made explicit reference to some respondents not participating, albeit that he mistakenly referred to two rather than five of them not participating. As his Honour explained:[18]
On 12 January 2022 a claim for costs was lodged by some of the respondents. The evidence before the Court is that two of the respondents do not wish to be involved. They were advised of the hearing date for the argument but declined to attend. It is not surprising. These proceedings commenced about eight years ago. The respondents were all people who had been defrauded by the appellants. The legal system has produced no return. It is hardly surprising that people become disillusioned and drop out of the process.
[18] Collins & Anor v Djunaedi & Ors (Judge Dart, 23 February 2023, unreported) at [9].
In relation to Ground 1.1, the applicants argued at first instance that the judge could not, or should not, fix the quantum of the respondents’ costs in the absence of the missing respondents. Judge Dart rejected this argument:[19]
Likewise, the appellants complain of the fact that not all of the respondents have made the application for the Court to fix the quantum of the costs. This is only a taxation procedure. The appellants rely on Coulls v Bagot’s Executor & Trustee Co Ltd,[20] a decision of the High Court. The relevant principle is that where two parties who jointly have the benefit of a contract wish to enforce the terms of the contract, it is necessary for both to be joined to the action. If only one party brings the action, the proceedings would be ineffective for that reason. If one of two parties to a contract does not wish to proceed, the usual course is to join the unwilling party as an additional defendant.
The issue does not arise here. The first consideration is that all of the parties entitled to the benefit of the costs order are already parties. This is not a case of a litigation being pursued by some only. Further, the two respondents who have not participated in the taxation process have been put on notice a number of times and have indicated they do not wish to participate.
The only legitimate concern of the appellants, apart from the mere taking of a technical point, is the risk of making a payment to the respondents in relation to costs and being exposed to a further claim from the other two respondents. The Court can deal with that by fashioning an order to protect the appellants from that risk.
[19] Collins & Anor v Djunaedi & Ors (Judge Dart, 23 February 2023, unreported) at [15]-[17].
[20] (1967) 119 CLR 460.
Given that all respondents were parties below, we do not consider there to be any merit in the challenge to the judge’s reasons. There was no contractual or other impediment to his Honour taxing the respondents’ costs in the absence of some of those respondents.
Nor is there any merit in Ground 1.4. It is true that the judge referred to two respondents, rather than five respondents, not participating. The respondents informed the judge’s chambers of the error in the reasons, but the applicants requested that the correspondence be disregarded by the Court.
The judge’s error as to the number of respondents not participating is of no significance. It had no impact on his Honour’s reasoning. The gravamen of his reasoning was that the non-participation of some respondents in the taxation process did not stand in the way of him taxing the costs. It did not matter whether there were two or five respondents not participating.
Ground 1.2
Ground 1.2 alleges a denial of procedural fairness. The proceedings before Judge Dart were the subject of many directions hearings before the final hearing. The applicants had clear notice of the prospect of a lump sum costs order. They made submissions in opposition to that course, which the judge referred to in his reasons.
In the absence of any particulars or specificity as to the complaint sought to be advanced, it is difficult to see how the applicants could make out any want of procedural fairness in the judge’s approach.
Ground 1.3
The applicants contend that, having found that no genuine offer had been made prior to the respondents filing their claim for costs, the judge ought to have dismissed the respondents’ claim to tax their costs.
The respondents dispute the factual premise of this submission, pointing to their offer to accept $22,000 made by way of letter dated 12 November 2021 (prior to the institution of their claim for a taxation of costs).
The applicants presumably rely upon the judge’s reference (in his reasons dated 3 May 2023) to that offer not technically complying with r 195.1 because it imposed terms of payment. However, that observation was made in the context of determining whether the applicants should be required to pay the respondents’ costs of the taxation on an indemnity basis. It does not follow that the technical non-compliance was a barrier to the commencement of the taxation of costs proceedings; or that the claim for taxation ought to have been dismissed.
Whilst the r 195.1 requirement that a claimant make a genuine offer before commencing a taxation is expressed in mandatory terms, and assuming the point was taken in a timely way (which is not apparent from the papers), the judge undoubtedly had a discretion to waive compliance or otherwise not dismiss the respondents’ claim. Given the technical nature of any non-compliance with r 195.1, there would have been a sound basis for proceeding with the taxation.
Ground 2
This proposed ground challenges the judge’s exercise of his discretion in order 3 to confine the applicants to 50 per cent of their costs of the application to set aside the default costs judgment against them.
Despite the terms in which the ground is framed, it is difficult to see how any technical non-compliance with r 195.1 is of any relevance to order 3. The judge’s reasons for departing from the usual rule that costs follow the event, to the extent of confining the applicants to 50 per cent of their costs, related to the technical nature of the applicants’ success, and the fact that they pursued several other heads of argument which were not successful. These were sound grounds for the order made. No basis for impugning his Honour’s broad discretion as to costs has been identified.
Ground 3
This proposed ground challenges the judge’s exercise of his discretion in ordering that the applicants pay the respondent’s costs of the taxation process itself on the standard basis, but with a 20 per cent uplift to mark the Court’s disapproval of the applicants’ conduct of the taxation (that is, order 4).
The relevant passages from his Honour’s reasons have been set out earlier. They provided ample justification for the order made.
The applicants criticise his Honour’s reliance upon the respondents’ offer to accept $22,000 for their costs. They refer to a finding that there was no “genuine offer.” This is apt to mislead. As already explained, the judge found that the offer did not technically comply with r 195.1. It follows that, strictly speaking, there was not a “genuine offer” as defined in r 195.1(2). However, his Honour did not find that it was not a genuine offer in the ordinary sense in which those words are used. To the contrary, the offer was plainly not only genuine, but entirely reasonable (if not generous). The judge was perfectly entitled to regard the offer as a factor in favour of an uplift in the costs to be paid by the applicants.
Whilst relevant in a general sense, the fact that the respondents’ default judgment was set aside is not a basis for impugning the judge’s order.
Once again, no basis for impugning his Honour’s broad discretion as to costs has been identified.
Grounds 4 and 5
These proposed grounds challenge orders 5 and 6, being orders made to assist in the enforcement of order 2.
It may be accepted that were the challenge to order 2 to succeed on appeal, then it would follow that orders 5 and 6 would be set aside. However, in circumstances where the challenge to order 2 is lacking in merit, this does not assist on the issue of leave to appeal.
As no separate or further submissions were advanced in support of these grounds, there is no basis to conclude that there is sufficient doubt about the judge’s decision to warrant the reconsideration of orders 5 and 6 on appeal.
Conclusion
In summary, the applicants’ proposed grounds of appeal are generally lacking in merit. We are not persuaded that the orders made are attended by sufficient doubt to warrant their reconsideration on appeal.
In addition to this, the proposed grounds do not raise any matter of general principle or importance. To the extent that the decisions made below involved any points of principle, they involved the application of settled principles to the particular facts of the taxation process undertaken by the judge.
Nor do we consider that there would be any substantial injustice to the applicants were the orders left to stand. The orders in question, while resulting in sums of money payable by the applicants to the respondents, relate to matters of practice and procedure arising out of a taxation of costs rather than the parties’ substantive rights in the proceedings.
The applicants say that if the orders are left to stand they will suffer financial prejudice (and potentially lose their home). The weight to be attached to this claim must be assessed in a context where, on any view, the applicants are liable to pay a significant sum of costs to the respondents. To the extent that this litigation, and in particular the taxation process, has placed them under financial strain, it is apparent from the judge’s reasons, and the history of the proceedings more generally, that the applicants are largely the authors of their own misfortune.
Leave to appeal should be refused. In the circumstances, there is no utility in granting an extension of time and so the application for that extension should also be refused.