Dobrodinski & Britza v Salievic No. Scciv-00-781

[2001] SASC 277

DOBRODINSKI & BRITZA v SALIEVIC
[2001] SASC 277

Magistrates Appeal

1. WILLIAMS J         This Magistrate’s appeal was heard in Mount Gambier.  On 19 January 2001 I made an order in the following terms:

   “1.Allow the appeal for the purposes of determining that upon the defendant’s election, she be entitled (pursuant to section 84 of the Fair Trading Act 1987), to recover damage from the plaintiffs in respect of their involvement in a breach of section 46 of the Fair Trading Act, by reason of the misrepresentation of the average weekly takings of the business since 30 June 1994 as being $1797 or thereabouts.

   2.The order of the Magistrate with respect to the counterclaim will be set aside and in lieu thereof judgment will be entered in favour of the defendant for a breach of the Fair Trading Act for damages to be assessed.

   3.The action will be remitted to the Magistrate for further consideration to determine in a manner consistent with these reasons, the amount of damages to which the defendant is entitled upon the counterclaim.”

2. Written reasons for this decision were supplied to the parties.  Each party has now made written submissions to me upon the question of costs of the appeal.

3. The appellants Dobrodinski and Britza submitted that costs ordinarily follow the event and that upon this footing they should be entitled to their costs.  The respondent on the other hand submitted that the substantial argument upon the appeal concerned the basis of the quantification of damages at first instance.

4. The reality is that the appellants Dobrodinski and Britza have secured what appears to be a pyrrhic victory in which they have succeeded in having the matter remitted to the Magistrate for re-assessment of Ms Salievic’s damages in accordance with my reasons.  Upon any view of the case when damages are properly assessed the amount involved is unlikely to put the appellants in much different position (if any) than if the original judgment of the Magistrate had been allowed to stand.

5. The error which I identified was one of law on the part of the Magistrate.

6. I am not disposed to award costs to the appellants of this appeal which in commercial terms appears to be of so little value to them.  However, consideration of an order in favour of the respondent could only be properly assessed in light of the eventual outcome.  In the interests of the parties I am disposed to finally deal with the question of costs so as to reduce the ambit of the remaining dispute.  Hopefully this will promote the possibility that the parties will take up the suggestion which I made in par 24 of my abovementioned reasons that the parties should make efforts to effect a compromise.

7. In all the circumstances I consider that justice will be done if I refuse to make any order with respect to the costs of the appeal.  I note that the Magistrate has reserved the question of costs of trial and the question of interest (see par 28 of my previous reasons).  He will determine the reserved questions in the ordinary course.

8. There will be no order as to the costs of the appeal.