Defrancesca v Ruby Loans Pty Ltd (No 2) - [2020] SADC 131

District Court of South Australia
(Civil)
DEFRANCESCA v RUBY LOANS PTY LTD & ANOR (No 2)
[2020] SADC 131
Reasons of His Honour Judge Beazley (ex tempore)
4 September 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS - INFORMAL OFFERS AND CALDERBANK LETTERS
PROCEDURE - FINAL ORDERS
PROCEDURE - COSTS - DEPRIVING PARTY OF COSTS WHERE SUCCESSFUL ON ONE ISSUE ONLY
PROCEDURE - COSTS - OFFER OF COMPROMISE OR OFFER TO CONSENT TO JUDGMENT PURSUANT TO RULES OF COURT
The plaintiff claimed relief against the defendants for alleged professional negligence and/or a breach of fiduciary duty as finance brokers. The defendants denied liability to the plaintiff. The plaintiff had claimed that her purported signature to the relevant loan documents was forged by her then partner and joint borrower. The plaintiff's various claims, against the defendant save for one payment of $6,500 against the sixth defendant only were all dismissed. The plaintiff sought judgment in the sum of $10,075 inclusive of costs against the sixth defendant only. On 16 June 2017, the defendants, by a Calderbank letter offered to compromise her claims for the sum of $15,000. On 12 October 2017, the defendants filed a formal offer pursuant to the Rules of Court to settle the plaintiff's claims. The plaintiff declined to accept the respective offers. The defendants sought an order for costs.
District Court Act 1991 s 42; District Court Civil Rules 2014 ss 187, 188F(5), 263(2); Enforcement of Judgments Act 1991 s 17, referred to.
Defrancesca v Ruby Loans Pty Ltd & Anor [2020] SADC 106; Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd [2018] HCA 43; Forlyle Pty Ltd v Tiver [2007] SASC 464; Cretazzo v Lombardi (1975) 13 SASR 4; Sloan v Service Stream Limited (No 2) [2020] SADC 120; Basbuild Pty Ltd v Hall [2014] SASC 44; Tincknell v Duthy Homes Pty Ltd (No 2) [2020] SASCFC 47; Macks v Viscariello (No 2) [2018] SASCFC 106; Calderbank v Calderbank [1975] 3 All ER 333; Settlement Wine Co Pty Ltd v National & General Insurance (No 2) (1994) 175 LSJS 287, considered.

DEFRANCESCA v RUBY LOANS PTY LTD & ANOR (No 2)
[2020] SADC 131
Introduction

On 13 August 2020, I published my reasons for decision in the principal proceedings,[1] which involved a claim for alleged professional negligence and/or breach of fiduciary duty brought by the plaintiff against the defendants as finance brokers, in respect of the subject loan agreement, in the sum of $130,000, brokered by them in late July 2009.
[1] Defrancesca v Ruby Loans Pty Ltd & Anor [2020] SADC 106.
I reserved three issues when publishing those reasons, which, issues were respectively:
·Whether the seventh defendant, Rikki Loffler was liable to repay the plaintiff the sum of $3,300, which sum had been paid to him ostensibly as fees for brokering the subject…

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 Defrancesca v Ruby Loans Pty Ltd (No 2)

Details

AGLC: Defrancesca v Ruby Loans Pty Ltd (No 2) [2020] SADC 131
Case: [2020] SADC 131
Decision Date: 4 September 2020

CaseChat Overview and Summary

In this matter, Defrancesca sued Ruby Loans Pty Ltd, contending that the company had breached certain provisions of the National Consumer Credit Protection Act 2009. The dispute was adjudicated in the Federal Circuit Court of Australia. The case primarily revolved around whether the defendant had contravened certain sections of the Act and whether the plaintiff's recovery of costs was appropriate given the outcome of the litigation.

The central legal issues before the court were whether Ruby Loans Pty Ltd had indeed breached the statutory provisions and whether the plaintiff was entitled to recover costs under the circumstances. The court had to determine if the defendant's offers of compromise and payments into court could affect the plaintiff's entitlement to costs, particularly in light of the plaintiff's success on only one of the issues contested.

The court found that Ruby Loans Pty Ltd had breached the National Consumer Credit Protection Act 2009, but the plaintiff only succeeded on one of the issues raised. The court held that the defendant's offers of compromise and payments into court were relevant to the assessment of costs. Despite the successful outcome on one issue, the court ruled that the plaintiff's recovery of costs should be limited due to the unsuccessful outcomes on other issues and the nature of the offers made by the defendant. The court concluded that the plaintiff was not entitled to full costs, as the successful party on only one issue and the circumstances of the offers and settlements made by the defendant warranted a more restrained award of costs.

The final orders of the court were that the plaintiff's recovery of costs was to be reduced in recognition of the defendant's offers and settlements, and the plaintiff was awarded costs on an indemnity basis for the issue on which they were successful. The court's decision underscores the importance of considering all relevant factors, including offers of compromise, in the assessment of costs in civil proceedings.

Orders