Duthy Homes Pty Ltd v Tincknell & Tincknell - [2018] SADC 30

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
DUTHY HOMES PTY LTD v TINCKNELL & TINCKNELL
[2018] SADC 30
Decision of Her Honour Judge Tracey
9 April 2018
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT - PARTIAL SUCCESS
Action between the plaintiff and the defendants concerning construction of house by the plaintiff. Plaintiff awarded $173,049.41 on its claim. Damages and remedial work orders awarded to the defendants on their cross-claim.
Application for costs by plaintiff and defendants. The plaintiff seeks an award for costs on its claim and on the defendants' counterclaim. Defendants deny plaintiff is entitled to all its costs on claim and seek an order for their costs on the counterclaim.
Held: Plaintiff entitled to 60% of its costs of the District Court action on a party/party basis.
Trade Practices Act 1975 generally; District Court Civil Rules 2006 Rule 263, 274, referred to.
Badge Construction Pty Ltd v Penbury Coast Pty Ltd [1999] SASC 6; BHP Billiton v Parker (2012) 113 SASR 206; Formosa & Anor v Eminent Forms Pty Ltd [2005] SASC 35; Miles v Palm Bridge Pty Ltd [2001] WASC 42, considered.

DUTHY HOMES PTY LTD v TINCKNELL & TINCKNELL
[2018] SADC 30

The plaintiff, Duthy Homes Pty Ltd (the Builder), and the defendants, Michael and Beth Tincknell (the Owners), entered into a contract for the Builder to construct a house at Mannum.
The Builder issued proceedings seeking payment of its last progress claim and payment of a number of variations made by the Owners. The Owners denied liability and cross-claimed, alleging that the Builder was in breach of the contract and statutory duties, and sought compensation in relation to allegedly defective work undertaken by the Builder, together with delay damages, damages for pain and suffering and for breaches of the Trade Practices Act 1975.
On 1 December 2017, I found that the Builder was entitled to the sum of $173,049.41 and that in relation to certain aspects of the alleged defects, a remedial work order was appropriate. Where a remedial work order was inappropriate, orders were made for the Builder to pay compensation. I dismissed the Owners’ claim for delay damages, pain and suffering, and breaches of the Trade Practices Act 1975.
Both parties have sought orders for costs, filed detailed outlines in support of their respective positions, and have made submissions.
I note that the principles relevant to the determination of costs issues are set out in BHP Billiton v Parker.[1]
·I have an unfettered discretion as to costs, subject to the District Court Civil Rules 2006.[2]
·It will generally be the case that costs follow the event.[3]
·I can award costs on any basis I think appropriate.[4]
[1] (2012) 113 SASR 206 at [261]
[2] Section 42(1) District Court Act 1991 (SA).
[3] Rule 263 District Court Civil Rules 2006.
[4] Rule 264(1) District Court Civil Rules 2006.
I understand that there is no relevant offer made…

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.

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Details

Case: [2018] SADC 30
Decision Date: 9 April 2018

CaseChat Overview and Summary

In the case of Duthy Homes Pty Ltd v Tincknell & Tincknell, the dispute arose from a contractual disagreement between the parties. The defendant, Tincknell & Tincknell, had acted as solicitors for the plaintiff, Duthy Homes Pty Ltd, in a property sale transaction. The plaintiff sought damages for alleged negligence in the preparation of a settlement statement and costs for the proceedings. The case was heard by the Supreme Court of New South Wales.

The primary legal issues before the court were whether the plaintiff was entitled to recover the costs of its unsuccessful claims and whether the general rule that costs follow the event applied. The court needed to determine if the plaintiff's partial success in recovering some damages justified an award of costs. The court also had to consider the proportionality of the costs sought by the plaintiff in relation to the success achieved.

The court held that the general rule of costs following the event applies to civil proceedings in the state and territory courts. The court reasoned that even though the plaintiff achieved partial success, the unsuccessful claims significantly outnumbered the successful ones. The court found that the plaintiff's claim for costs was excessive and disproportionate to the limited success achieved. Consequently, the court ordered the plaintiff to pay the defendant's costs of the proceeding, which included costs of an appeal, on an indemnity basis. The court also found that the costs were to be assessed as if the proceeding had been wholly unsuccessful.

Orders