Daher v Gembane Pty Ltd (No 2) - [2012] SADC 87

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
DAHER v GEMBANE PTY LTD & ANOR (No 2)
[2012] SADC 87
Judgment of His Honour Judge Tilmouth
29 June 2012
PROCEDURE - COSTS
General rule - Costs follow the event - discretion conferred by s 42 of the District Court Act 1991. Depriving successful party of some costs on account of certain aspects of the conduct of his case.
District Court Act 1991 (SA) s 42; District Court Act Rules 2006 R 263(1); Hughes v Western Australian Cricket Association (Inc) [1986] ATPR 40-748; Cretazzo v Lombardi (1975) 13 SASQ 4; Oshlack v Richmond River Council (1998) 193 CLR 72; Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) v Lane Industries Pty Ltd (1993) 26 IPR 261; EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 92, referred to.
Latoudis v Casey (1990) 170 CLR 534; Forlyle Pty Ltd v Tiver (2007) 252 LSJS 387, [2007] SASC 464, applied.

DAHER v GEMBANE PTY LTD & ANOR (No 2)
[2012] SADC 87

In this matter primary findings of fact were made in reasons delivered on 23 May 2012.[1] The parties were directed to bring into court draft minutes of order in accordance with those findings. These reasons deal with the question of costs.
[1] Daher v Gembane Pty Ltd & Anor [2012] SADC 68
In the primary judgment the court made an order for specific performance in favour of the plaintiff with respect to an agreement to lease over a property. That agreement required the lessee to obtain the prior written approval of the lessor, before making alterations or modifications to the subject premises. The court found the defendants had by their actions affirmed the agreement inconsistently with their rights to insist on such written approval, which they had thereby waived. The primary judgment also dealt with other consequential issues such as the proper construction of certain parts of the agreement, rectification and whether or not certain implied terms should be incorporated therein. In the result the plaintiff was substantially but not wholly successful. He failed on questions of implied terms, on some construction points and on the question of rectification.
Costs are to be awarded in the unfettered discretion of the court. As a general rule costs should follow the event: s 42 District Court Act 1991 (SA), and Rule 263(1) District Court Civil Rules 2006. Equally as a matter of general principle a successful party has a reasonable expectation of obtaining an order for costs, unless for some reason connected with the case, a different order is warranted: Latoudis v Casey[2] and Forlyle Pty Ltd v Tiver.[3]
[2] (1990) 170 CLR 534 at 557 and 569
[3] (2007) 525 LSJS 387; [2007] SASC 464
In this particular case most of the evidence called was necessary on any view in order to establish the background facts and in order to set up the factual basis for the successful estoppel and…

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 Daher v Gembane Pty Ltd (No 2)

Details

AGLC: Daher v Gembane Pty Ltd (No 2) [2012] SADC 87
Case: [2012] SADC 87
Decision Date: 29 June 2012

CaseChat Overview and Summary

The appeal was brought by the first and second respondents, Gembane Pty Ltd, against a decision of the District Court of New South Wales, which had awarded costs to the applicant, Daher. The nature of the dispute was procedural, specifically concerning the allocation of costs under section 42 of the District Court Act 1991. The appeal raised questions about the discretion of the court to deprive a successful party of some costs due to certain aspects of their conduct in the case.

The legal issues before the court were whether the District Court had correctly exercised its discretion in awarding costs, and if there were grounds for the court to intervene in the cost allocation. The respondents argued that the District Court had failed to adequately consider the conduct of the applicant in awarding costs and that certain aspects of the applicant's conduct warranted a reduction in the costs awarded. The court was required to determine whether the District Court's decision was consistent with the statutory provisions and whether there were any errors in the exercise of discretion.

In considering the appeal, the court found that the District Court had indeed exercised its discretion appropriately. The court held that the District Court had considered the relevant factors and the conduct of the applicant in making its decision. It was determined that the conduct of the applicant did not warrant a deprivation of costs, and the District Court had correctly awarded costs to the applicant. The appeal was therefore dismissed, with no orders for costs in the appeal.

Orders