Davey v Colovic (No 2)
[2021] SASC 29
•22 March 2021
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 that the application should be certified fit for one counsel only. The respondent has made it clear in his written submissions that he disputes both certification for senior counsel and certification for two counsel.
The applicants’ submissions
The applicants submit that the matter was sufficiently complex to warrant both junior and senior counsel. In that respect, the applicants note that the reasons published by the Court are detailed. They run to 21 pages comprising 76 paragraphs and involve detailed consideration of both substantive and procedural law.
Further to that submission, the applicants observe that the Court was required to consider and canvass detailed written submissions provided by the parties supplemented with oral submissions. The Court was also required to analyse authorities that were relied upon by the respondent. After the hearing of the matter, the High Court delivered its reasons in Deguisa v Lynn.[2] The Court invited the parties to address that decision and both parties provided further submissions.
[2] [2020] HCA 39.
The applicants also contend that the nature of the issues in dispute and the lack of judicial authority directly on point relating to the contention that the easement had ceased to exist resulted in a degree of complexity that warranted the engagement of senior and junior counsel. It was also necessary to consider the operation of the Uniform Civil Rules 2020 (UCR). At the time of the hearing there had not been any prior decision of the Court concerning its power to enter summary judgment under UCR 144.2. The nature of the substantive issues in dispute, combined with the procedural considerations, resulted in the matter being of sufficient complexity to warrant both senior and junior counsel.
The respondent’s submissions
Senior counsel for the respondent has referred to a considerable number of authorities in support of the contention that the Court should only allow costs for one counsel. The principles stated in the authorities have been conveniently summarised by Dal Pont in The Law of Costs as follows:[3]
[3] 2nd ed at [17.73].
·The volume of material to be handled;
·The number or character of the witnesses to be handled;
·The nature or extent of cross-examination required;
·The complexity or difficulties of the issues of fact or law, and of the required presentation;
·The extent of the preparatory research of a fact or law to be undertaken;
·The level of court;
·The importance of the outcome for the parties;
·The involvement of charges of fraud or other serious imputations of reputation or integrity; and
·The general practice in matters of the kind in question.
The respondent has also referred to a summary of the authorities in much the same terms in the judgment of Auxiliary Judge Norman in Players v Clone (No 3).[4]
[4] [2020] SASC 165 at [74]-[82].
The respondent submits that the application was an interlocutory application to strike out pleadings. The material was not voluminous. No witnesses were called and there was no cross-examination. The application was not complex and occupied less than one hour of Court time. Only the most limited research was required. The respondent disputes the contention by the applicants that the Court was required to consider and canvass detailed written submissions provided by the parties, with the observation that the respondent did not rely on any written submissions and the applicants’ case almost entirely departed from their written submissions.
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.
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