Davey v Colovic (No 2) - [2021] SASC 29

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
DAVEY & ANOR v COLOVIC (No 2)
[2021] SASC 29
Judgment of the Honourable Justice Parker
22 March 2021

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - TAXATION AND OTHER FORMS OF ASSESSMENT - PARTICULAR ITEMS - COUNSEL FEES - NUMBER OF COUNSEL
This is an application for costs.
The applicants succeeded in an interlocutory application seeking orders to strike out paragraphs 3.3, 4.3, 10 and 22 of the respondent’s defence and summarily dismissing the respondent’s cross claim.
The applicants submit that the matter was sufficiently complex to warrant both junior and senior counsel. The respondent, however, contends that the application should be certified fit for one counsel only.
Held, per Parker J:
1.That the respondent is to pay the applicants’ costs of and incidental to the Interlocutory Application (FDN 10) in any event.
2.That the matter be certified fit for senior counsel but one counsel only, on the basis that although there was no direct authority, either in this State or elsewhere in Australia or New Zealand, dealing with the principal issue raised in the case, the volume of material to be handled was minimal, there were no witnesses, no cross-examination, no suggestion of fraud or any other improper conduct and the hearing only occupied about an hour of Court time.

Encroachments Act 1944 (SA); Real Property Act 1886 (SA) s 90B; Uniform Civil Rules 2020 (SA), referred to.
Barry v Fenton [1952] NZLR 990; Davey & Anor v Colovic [2021] SASC 7; Deguisa v Lynn [2020] HCA 39, discussed.
Players v Clone (No 3) [2020] SASC 165, considered.

DAVEY & ANOR v COLOVIC (No 2)
[2021] SASC 29

Land and Valuation Division

PARKER J: The underlying issue in Davey & Anor v Colovic was an alleged encroachment.[1] The applicants sought an order under the Encroachments Act 1944 (SA) requiring that the area of the encroachment be transferred to them and that the Court determine the compensation payable to the respondent. The applicants sought orders striking out certain paragraphs of the respondent’s defence and the entirety of the respondent’s cross claim.
[1] [2021] SASC 7.
I found that an easement continued to exist and could only be extinguished by the Registrar-General acting under s 90B of the Real Property Act 1886 (SA). On that basis, I found that the orders sought by the applicants should be granted. Counsel requested that they be given the opportunity to consider my judgment before I pronounced the final orders and also that they have the opportunity to make submissions on the question of costs.
The parties now accept that I should pronounce orders to the effect indicated in my earlier judgment and have agreed on appropriate terms. I shall proceed accordingly.
The respondent acknowledges that it is appropriate for the Court to award costs to the applicants on a party/party basis. However, it contends…

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 Davey v Colovic (No 2)

Details

AGLC: Davey v Colovic (No 2) [2021] SASC 29
Case: [2021] SASC 29
Decision Date: 22 March 2021

CaseChat Overview and Summary

The case of Davey v Colovic (No 2) involved an interlocutory application in the Supreme Court of New South Wales. The primary issue before the court was the determination of costs related to the litigation, specifically focusing on the appropriateness of engaging two counsel and the necessity of employing senior counsel. The court had to decide whether the absence of direct authority on the principal issue necessitated the engagement of senior counsel and whether the case warranted the fees for two counsel.

The legal issues revolved around the appropriateness of engaging two counsel and the necessity of senior counsel in the context of this interlocutory application. The respondent argued that the length of the judgment and the complexity of the application did not justify the use of two counsel or senior counsel. However, the court found that while the volume of material to be handled was minimal and the case did not involve any witnesses or cross-examination, the principal issue raised in the case was novel and had no direct authority in Australia or New Zealand. Given the potential effect on the property rights of the parties, the court deemed it appropriate to brief senior counsel.

The court held that it was not appropriate to allow fees for two counsel given the minimal volume of material, absence of witnesses, and the relatively short duration of the hearing. However, the court found it appropriate to certify the matter fit for senior counsel but one counsel only. This decision was based on the novelty of the principal issue and the potential impact on the property rights of the parties.

In conclusion, the court ordered that the respondent was to pay the applicants' costs of and incidental to the Interlocutory Application and certified the matter fit for senior counsel but one counsel only. The court's reasoning was grounded in the absence of direct authority on the principal issue and the potential impact on the property rights of the parties.

Orders

Orders of the court

Held, per Parker J:

1. That the respondent is to pay the applicants’ costs of and incidental to the Interlocutory Application (FDN 10) in any event.

2. That the matter be certified fit for senior counsel but one counsel only, on the basis that although there was no direct authority, either in this State or elsewhere in Australia or New Zealand, dealing with the principal issue raised in the case, the volume of material to be handled was minimal, there were no witnesses, no cross-examination, no suggestion of fraud or any other improper conduct and the hearing only occupied about an hour of Court time.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Apart from cases dealing with the principle of indefeasibility under the Torrens system of title, there was no direct authority, either in this State or elsewhere in Australia or New Zealand, dealing with the principal issue raised in this case, i.e. had the right of way been extinguished on its own terms or could only the Registrar-General extinguish an interest recorded on the certificate of title. For that reason, and given the effect upon the property rights of the parties, I consider that it was appropriate to brief senior counsel.Conclusion For these reasons, and also those expressed in my earlier judgment, I will make orders in the following terms:1.That paragraphs 3.3, 4.3, 10 and 22 of the Defence filed by the respondent on 7 August 2020 (FND 7) are struck out. 2.That the Cross Claim filed by the respondent on 7 August 2020 (FDN 6) is summarily dismissed.3.That the respondent is to pay the applicants’ costs of and incidental to the Interlocutory Application (FDN 10) in any event.4.That the matter be certified fit for senior counsel but one counsel only.

Ratio Decidendi

Legal Principle Established

The respondent further submits that the fact that the Court wrote a 21 page judgment is not a relevant factor in determining costs. The respondent also submits that the decision of the High Court in Deguisa v Lynn, to which the Court drew the parties’ attention, was not relevant and there is nothing remarkable or special about an application that requires consideration of the Court Rules.Consideration Two issues arise. First, was it appropriate to engage two counsel. Secondly, was the use of senior counsel warranted. The volume of material to be handled was minimal. The only documents in issue were the relatively short pleadings, the certificates of title and the Memorial in which the right‑of‑way was expressed. There were no witnesses and, obviously, no cross‑examination. There was no suggestion of fraud or any other improper conduct. The hearing occupied about an hour of Court time. While my judgment extended over some 21 pages, much of that comprised analysis of authorities not referred to by the parties and the reproduction of statutory provisions. The primary authority relied on by the respondent, Barry v Fenton, was readily distinguishable.[5] I accept that the length of the judgment may often have little bearing on the present costs issue. [5] [1952] NZLR 990. I also accept the respondent’s contention that there is nothing remarkable or special about an interlocutory application that requires the Court Rules to be considered. For these reasons, I do not consider it appropriate to allow fees for two counsel. However, I take a different view as to the appropriateness of the engagement of senior counsel. Apart from cases dealing with the principle of indefeasibility under the Torrens system of title, there was no direct authority, either in this State or elsewhere in Australia or New Zealand, dealing with the principal issue raised in this case, i.e. had the right of way been extinguished on its own terms or could only the Registrar-General extinguish an interest recorded on the certificate of title. For that reason, and given the effect upon the property rights of the parties, I consider that it was appropriate to brief senior counsel.Conclusion For these reasons, and also those expressed in my earlier judgment, I will make orders in the following terms:1.That paragraphs 3.3, 4.3, 10 and 22 of the Defence filed by the respondent on 7 August 2020 (FND 7) are struck out. 2.That the Cross Claim filed by the respondent on 7 August 2020 (FDN 6) is summarily dismissed.3.That the respondent is to pay the applicants’ costs of and incidental to the Interlocutory Application (FDN 10) in any event.4.That the matter be certified fit for senior counsel but one counsel only.