DIMELLA v RUDAKS - [2008] SADC 123

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
DIMELLA v RUDAKS
[2008] SADC 123
Reasons for Decision of Her Honour Judge McIntyre
25 September 2008
PROCEDURE - COSTS
Defendant seeks indemnity costs - consideration of discretion in relation to costs - defendant awarded party/party costs.
District Court Civil Rules 1987 R264(5), referred to.
Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 118 ALR 248; Casley-Smith v F S Evans & Sons Pty Ltd (No 6) (1989) 148 LSJS 483 at 487; Pirrotta v City Bank Ltd (1998) 72 SASR 259, considered.

DIMELLA v RUDAKS
[2008] SADC 123

On 18 September 2008 the plaintiff’s claim was formally dismissed. The first defendant now seeks costs on an indemnity basis or, failing that, on a solicitor/client basis pursuant to Rule 264(5) of the District Court Civil Rules 2006 (DCCR).
The factual basis for this application is set out in the Affidavit of Kym David Ryder sworn on 3 September 2008 (“Mr Ryder’s affidavit”).
The plaintiff does not dispute that the first defendant is entitled to party/party costs but resists an order for indemnity or solicitor/client costs.
DCCR 264 vests discretion in the court as to what costs orders ought to be made in a particular case. The discretion must however be exercised judicially. Generally costs would be awarded on a party/party basis[1]. There must be special or unusual features to justify the departure from that practice.[2]
[1] DCCR 264(2)
[2] Casley-Smith v F S Evans & Sons Pty Ltd (No 6) (1989) 148 LSJS 483 at 487
In Colgate Palmolive Co & Anor v Cussons Pty Ltd[3] Sheppard J considered the principles relating to an award of solicitor/client costs. He set out a number of principles relating to the exercise of the discretion[4]. This list is not exhaustive and it is plain that the categories are not closed.
[3] (1993) 118 ALR 248
[4] Casley-Smith v F S Evans & Sons Pty Ltd at pp 256 - 257
The first defendant contends that a number of special features apply in this case. It was conceded that individually these features might not be sufficient but in combination it was said that they provided compelling grounds for the exercise of the discretion to award indemnity or solicitor/client costs. These factors were:
·The plaintiff’s imprudent refusal of several offers of compromise
·The plaintiff’s refusal to mediate
·Properly advised, the plaintiff should have been aware that she had little prospect of success
·The claim was not genuine
Offers of settlement
The first defendant made three offers of settlement as follows:
·An offer by letter dated 21 September 2006 which letter forms exhibit ‘KDR5’ to the affidavit of Mr Ryder;
·Letter dated 24 October 2006. Exhibit ‘KDR6’ to the affidavit of Mr Ryder; and
·Letter dated 22 October 2007 which letter is exhibit is ‘KDR7’ to the affidavit of Mr Ryder.
The first two offers were offers of payment to the plaintiff conditional upon the sale of the property for at least $70,000 and some…

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 DIMELLA v RUDAKS

Details

AGLC: DiMella v Rudaks [2008] SADC 123
Case: [2008] SADC 123
Decision Date: 25 September 2008

CaseChat Overview and Summary

Dimella initiated proceedings against Rudaks, seeking a determination on a matter that was not specified in the text. The case was heard in a relevant Australian court, which is not identified in the text. Rudaks, upon the conclusion of the case, sought indemnity costs against Dimella, arguing that they should be compensated for the costs incurred due to the proceedings. The court was tasked with considering the discretion available to it in relation to costs and whether it should award the defendant indemnity costs.

The legal issues before the court involved the assessment of the defendant's claim for indemnity costs and the exercise of the court's discretion in relation to costs. The court needed to determine if the defendant was entitled to an indemnity for costs based on the circumstances of the case and the conduct of the parties involved. It also had to consider the principles guiding the court's discretion in awarding costs and whether there were any exceptional circumstances warranting such an award.

The court examined the relevant case law and statutory provisions to guide its decision on the defendant's request for indemnity costs. After careful consideration, the court decided that the defendant was not entitled to indemnity costs. Instead, the court awarded party and party costs to the defendant. This decision was based on the overall conduct of the case and the absence of exceptional circumstances that would justify an indemnity award.

No further orders were made by the court beyond the awarding of party and party costs to Rudaks.

Orders