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

1. 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

2. 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.

3. 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

4. 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 waiver issues.  Some additional evidence was led on the subject of rectification and implied terms, but not much.  However a greater portion of the final addresses were devoted to those considerations.  It is therefore reasonable for the plaintiff to bear the expense of litigating that portion of his claim as to those issues upon which he has failed: Hughes v Western Australian Cricket Association (Inc),[4] Cretazzo v Lombardi,[5] and Oshlack v Richmond River Council.[6]

   [4] [1986] ATPR 40-748 at 48, 136 per Toohey J

   [5]    (1975) 13 SASC 4 at 12

   [6] (1998) 193 CLR 72 at [69]

5. It is impossible to be precise or categorical about how much time was so involved.  The task of determining what costs, or what proportion of costs, should be so applied does not call for mathematical precision, but is rather one based on impression and evaluation: Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) v Lane Industries Pty Ltd.[7]  The result however should be one best reflecting the interests of justice in the entire circumstances of the case EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd.[8]

   [7] (1993) 26 IPR 261 at 272

   [8] [2011] FCAFC 92 at [9]

6. Because of the findings adverse to the plaintiff alluded to and the time and effort devoted to pursing those issues, doing the best one can in the circumstances, it is appropriate to order that the prima facie entitlement to costs of the whole action on a party/party basis be reduced by 15 per cent, to give effect to those considerations.

7. Accordingly there will be an order that the plaintiff have 85 per cent of his costs of action and on all the interlocutory applications heard and determined by Masters of this court wherein costs were reserved, on a party/party basis, to be agreed or taxed.