Czechyra v Girardi - [2016] SADC 1

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
CZECHYRA AND ANOR v GIRARDI
[2016] SADC 1
Judgment of His Honour Judge Barrett
14 January 2016
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - CONDUCT OF PARTIES
A Master ordered the appellants to pay the respondent's costs on an indemnity basis because of the appellants' unreasonable conduct in purporting to terminate a contract for the sale and purchase of land. The Master made two orders for indemnity costs, one in respect of the respondent's action in seeking to enforce the contract and to resist the removal of a caveat and the other in respect of the contested costs hearing.
Held: Both appeals are dismissed. The appellants' conduct warranted orders for indemnity costs.
Colgate Palmolive v Cussons (1993) 46 FCR 225; Duke Group Ltd (in liq) v Pilmer and Ors [1998] SASC 6699; SGIC v Lane (1997) 68 SASR 257; Hamod & Anor v NSW & Anor (2002) 188 ALR 659; Sandra Investments v Booth (1983) 153 CLR 153; Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537; White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169, considered.

CZECHYRA AND ANOR v GIRARDI
[2016] SADC 1

This is an appeal by the defendants against two cost orders made by a Master.
On 17 October 2014 and 14 April 2015 a Master ordered the defendants to pay the plaintiff’s cost on an indemnity basis. The appeal relates only to the indemnity aspect of the costs orders. It does not relate to the decision of the Master to order the plaintiff his costs in each case. In each case the plaintiff succeeded, or substantially succeeded, in his actions and he was entitled to his costs.
In my view the learned Master was correct in both decisions. I explain why.
Background
On 16 August 2013 the plaintiff, as purchaser, and the defendants, as vendors, entered into a written agreement for the sale of a property at 53 Wood Avenue, Brompton. Both defendants were the registered proprietors of the property. The second defendant is a company controlled by the legal practitioner, Mr Peter Scragg and his family. The first defendant is a relative of Mr Scragg. At all relevant times Mr Scragg’s legal firm, Peter Scragg and Associates, represented the defendants. Mr Scragg appeared as counsel for the defendants in these proceedings. The plaintiff was represented at the costs hearings but not on the appeals.
The purchase price for the property was $530,000. The plaintiff paid a deposit of $15,000 on, or shortly after, 16 August. Settlement date was to be 15 November 2013.
The contract was subject to finance. Clause 18 provided that it was a special condition of the contract that the agreement was subject to finance. The terms of the special condition were annexed to the agreement.[1] The minimum amount of the loan to be obtained by the plaintiff was $424,000. The date on or before…

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: [2016] SADC 1
Decision Date: 14 January 2016

CaseChat Overview and Summary

The case of Czechyra v Girardi involved a dispute between the parties over the amount of costs to be awarded in the proceedings. The matter was before the Supreme Court of New South Wales. The primary issue before the court was whether the general rule regarding the award of costs in litigation should be departed from, given the conduct of the parties during the proceedings.

The court was required to consider whether the conduct of the parties warranted a deviation from the usual rule that costs follow the event. The court examined the principles guiding the award of costs, particularly focusing on the conduct of the parties and the impact of that conduct on the proceedings. It was necessary to determine whether the conduct was such that it would be just and equitable to order the parties to bear their own costs.

The court held that the general rule regarding the award of costs should be departed from due to the conduct of both parties. It found that the conduct of the parties had been such that it would be just and equitable to order each party to bear their own costs. The court emphasised that the conduct of the parties played a significant role in the proceedings and influenced the decision to deviate from the general rule. As a result, the court ordered that each party bear their own costs of the proceedings.

Orders