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Cornwall & Ors v Rowan (No 4)

Cornwall & Ors v Rowan (No 4)

Case [2006] SASC 111 13 April 2006

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SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CORNWALL & ORS v ROWAN (No 4)
Judgment of The Full Court
(The Honourable Justice Bleby, The Honourable Justice Besanko and The Honourable Justice Sulan)
13 April 2006
PROCEDURE - COSTS - TAXATION - ASSESSMENT IN LIEU OF TAXATION
Application by seventh, eleventh and twelfth defendants for lump sum payment of costs pursuant to Supreme Court Rule 101.01(1)(a) - Sealed order of Full Court awarding defendants' costs of action and appeal - Where preparation of a bill in taxable form complex and expensive - Whether application for award of lump sum can be made after making sealed order for costs - Whether application under Supreme Court Rule 84.12 is necessary - Discretion to order lump sum costs in lieu of taxed costs – Consideration of matters relevant to awarding lump sum – Whether sufficient evidence to justify fixing lump sum - Assessment of a lump sum figure - Lump sum awarded.
Supreme Court Rules 1987 (SA) r 84.12, r 101.01(1)(a), r 101.07(5), r 101.07(6), r 101.13, referred to.
Beach Petroleum NL & Anor v Johnson & Ors (No 2) (1995) 57 FCR 119, applied.
Smoothpool & Anor v Pickering & Ors [2001] SASC 131, discussed.
Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006; Saizeriya Co Ltd v Peregrine Management Group Pty Ltd [2005] FCA 1174; Emanuele v Dau (1996) 133 FLR 312; Sony Entertainment (Australia) Ltd v Smith (2005) 215 ALR 788; Hadid v Lenfest Communications Inc [2000] FCA 628; Harrison & Anor v Schipp (2002) 54 NSWLR 738; Leary v Leary [1987] 1 All ER 261; Microsoft Corporation v Jiang [2003] FCA 101, considered.

CORNWALL & ORS v ROWAN (No 4)
[2006] SASC 111
Full Court: Bleby, Besanko and Sulan JJ
THE COURT:
Background

On 1 April 2005 this Court delivered judgment on a complex series of appeals against the orders of the trial Judge which followed a trial lasting many months. In disposing of the appeals the Court made the following relevant orders:
1.The appeals of the first, second, third, fourth, fifth, seventh, eighth, ninth, tenth, twelfth and thirteenth defendants be allowed.
2.     The cross-appeal of the plaintiff be dismissed.
3.The judgments dated 12 July 2002, 18 February 2003 and 28 February 2003 be set aside.
4.(1)     …
(4)     The plaintiff’s action against the third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth and thirteenth defendants be dismissed.
…
(8)     Subject to para.(9) the plaintiff pay to the fifth, seventh, eleventh, twelfth, and thirteenth defendants their costs of action provided that the costs payable to the fifth defendant of and incidental to its representation at the trial shall be in respect of no greater attendance than that of the thirteenth defendant at the trial.
(9)     The first and second defendants pay to the fifth, seventh, twelfth and thirteenth defendants their costs of the post-judgment contribution proceedings between the defendants.
…
(13)   The plaintiff pay to the fifth, seventh, eleventh,…

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.

Continue reading Cornwall & Ors v Rowan (No 4)

Details

AGLC: Cornwall & Ors v Rowan (No 4) [2006] SASC 111
Case: [2006] SASC 111
Decision Date: 13 April 2006

CaseChat Overview and Summary

Cornwall and others brought an action against Rowan and others, which was heard in the Supreme Court. The dispute centred on the costs associated with the litigation, particularly the taxation of those costs. The case was significant because it involved an application by the seventh, eleventh, and twelfth defendants for a lump sum payment of costs rather than having the costs taxed in the usual manner. This application was pursuant to Supreme Court Rule 101.01(1)(a).

The court was required to determine whether an application for a lump sum payment of costs could be made after a sealed order had already been made for the defendants' costs of the action and appeal. Additionally, the court needed to consider whether an application under Supreme Court Rule 84.12 was necessary in such circumstances. The legal issues also included the court's discretion to order a lump sum in lieu of taxed costs, the factors to be considered in awarding a lump sum, and whether there was sufficient evidence to justify fixing a particular lump sum figure.

The court held that it had the discretion to order a lump sum in lieu of taxed costs, particularly when the preparation of a bill in a taxable form was complex and expensive. The court considered various factors relevant to the award of a lump sum, including the nature and complexity of the litigation, the amount of work involved in preparing the bill, and the risk of error in assessing costs. The court concluded that there was sufficient evidence to justify fixing a particular lump sum figure. Accordingly, the court awarded a lump sum of costs to the defendants.

The final orders of the court included the award of a lump sum payment of costs to the seventh, eleventh, and twelfth defendants, reflecting the considerations and reasoning outlined in the judgment.

Orders