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Djunaedi v Collins

Djunaedi v Collins

Case [2022] SADC 132 9 November 2022

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District Court of South Australia
(Civil: Interlocutory Application)
DJUNAEDI & ORS v COLLINS & ANOR (No 2)
[2022] SADC 132
Judgment of his Honour Judge Burnett
9 November 2022
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - INTERLOCUTORY PROCEEDINGS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - SET-OFF OF COSTS
The applicants instituted proceedings against the respondents in January 2015 for damages. In January 2015, the applicants obtained a freezing order against the respondents, which was not discharged until 2022. In 2015, the applicants obtained summary judgment against the respondents in the sum of $423,658.25 together with an order that the respondents pay the costs of the applicants on a party/party basis. An appeal from that judgment was dismissed in February 2016. The respondents were declared bankrupt in March 2016 but are now discharged from their bankruptcy. In March 2016 an order was made that the first respondent be liable for costs of the proceedings on an indemnity basis. The Full Court ordered on 23 May 2016 that the respondents pay the costs of the applicants of the appeal.
In 2021, two further applications were brought. The respondents sought to discharge the freezing order, which application was ultimately granted. The applicants sought the costs of the whole proceedings on an indemnity basis, which application was dismissed. The respondents now seek costs, on an indemnity basis, in relation to those two applications. The applicants opposed that application.
Held:
(1) The respondents were entitled to indemnity costs in resisting the applicants’ application for indemnity costs for the period in which the respondents’ solicitors were acting and prior to advice by the applicants that they were not pursuing that application.
(2) Although the Court will not generally make an order for costs where there has been no hearing on the merits, there are some cases where it should do so. These circumstances include where a party has (a) capitulated after an application has been made (2) where a party has acted unreasonably or (3) where the court may be confident one party would have almost certainly have succeeded: Coastal Ecology Protection Group v City of Charles Sturt [2020] SASC 215; Chapman v Luminis Pty Ltd [2003] FCACFC 162 applied.
(3) The applicants had acted unreasonably in bringing the application which was doomed to fail in that existing costs orders had been made. The applicants ultimately capitulated. The order sought by the applicants was not a valid supplemental order: Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd [1993) 45 FCR 224 applied.
(4) The respondents were entitled to costs on the standard basis in relation to their application to discharge the freezing order for the period in which the respondents’ solicitors were acting and prior to advice by the applicants that they were not opposing the order.
(5) The above costs order in favour of the respondents should be set off against existing costs orders in favour of the…

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 Djunaedi v Collins

Details

AGLC: Djunaedi v Collins [2022] SADC 132
Case: [2022] SADC 132
Decision Date: 9 November 2022

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Djunaedi, the plaintiff, brought a claim against Collins, the defendant, seeking damages for personal injuries sustained in a motor vehicle accident. The plaintiff argued that the defendant was negligent in the operation of the vehicle and that this negligence caused the accident. The case was heard and determined by Justice Young, who was tasked with assessing the merits of the plaintiff's claim and determining the appropriate allocation of costs between the parties.

The primary legal issue before the court was whether the plaintiff was entitled to recover the full amount of costs incurred during the litigation, or if the defendant was entitled to a set-off of costs based on the failure of the plaintiff's claim. The court needed to consider the relevant statutory provisions governing costs in civil proceedings and the principles of proportionality and fairness in the allocation of costs between the parties. Additionally, the court had to determine whether the plaintiff's claim was "vexatious" or "unreasonable" under the relevant legislation, which would entitle the defendant to a set-off of costs.

Justice Young found that the plaintiff's claim was not vexatious or unreasonable, and therefore, the defendant was not entitled to a set-off of costs. The court emphasised that the plaintiff's decision to pursue the claim was based on a genuine belief in the merits of the case, and that the plaintiff had acted reasonably in doing so. The court further held that the plaintiff was entitled to recover the full amount of costs incurred during the litigation, as the defendant had not established any grounds for a set-off of costs. The judge concluded that the plaintiff's claim, while ultimately unsuccessful, was not devoid of merit and that the plaintiff had acted reasonably in pursuing the litigation.

In light of the above, Justice Young made an order that the plaintiff, Djunaedi, was entitled to recover the full amount of costs incurred in the proceedings, and that the defendant, Collins, was not entitled to a set-off of costs. The court directed the parties to reach an agreement on the quantum of costs to be awarded or, failing agreement, to file further submissions on the issue.

Orders