Ettridge v Ozyjiwsky (No 3) - [2013] SADC 118

District Court of South Australia
(Civil)
ETTRIDGE v OZYJIWSKY (No 3)
[2013] SADC 118
Judgment of His Honour Judge Slattery (ex tempore)
25 June 2013
PROCEDURE - COSTS
Following a trial in which the plaintiff's claim was successful, the plaintiff made an application for money held in the District Court Suitors Fund (plus interest) to be paid to the plaintiff's solicitors trust account forthwith.
Defendant was unrepresented throughout the trial, and remains unrepresented. Defendant has prepared a Notice of Appeal to be filed in the Supreme Court following the outcome of the trial.
Held: application refused. It is inappropriate for an Order to be made for payment out of the Suitors Fund until the appeal has been disposed of. The plaintiff has sufficient security over the defendant by having the funds remain in the Suitors Fund.
Application made by the plaintiff for costs against the defendant on an indemnity basis.
The plaintiff delievered a letter to the defendant dated 3 September 2012 (some 15 days prior to the commencement of the trial) in the form of a "Calderbank" offer.
Held: application refused. It was not unreasonable for the defendant to not accept the offer, nor was the defendant's case at the time of trial so weak that indemnity costs ought to be awarded against him.
Order: Paragraphs 2, 3 and 4 of the plaintiff's interlocutory application dated 11 June 2013 dismissed.
District Court (Civil) Rules 2006 Rule 264(5)(c) , referred to.
S,DJ v Channel 7 Adelaide Pty Ltd & Anor (2007) 97 SASR 118; Fiduciary Limited v Morning Star Research Limited (2002) 55 NSWLR 1 ; Alstom Power Limited v Yokogawa Australia Limited (No. 2) (2006) 244 LSJS 65; Sands v Channel 7 Adelaide Pty Ltd & Anor. (No. 2) [2009] SASC 365, applied.

ETTRIDGE v OZYJIWSKY (No 3)
[2013] SADC 118

By interlocutory application dated 11 June 2013, the plaintiff seeks the following orders:-
“1. …
2. That the moneys held in the Suitor’s [sic] fund of the District Court pursuant to the order of Master Rice made on the 3^rd day of September 2012 in addition to interest thereon be paid to the Plaintiff’s solicitors Trust Account . [sic]
3. That the Defendant pay the Plaintiff’s costs of action on a solicitor and own client basis.
4. Such further or other order as this honourable court deems fit.”
This application follows the delivery by me of my judgment in this matter on 7 June 2013 [2013] SADC 77.
At para.129 of that judgment, I said the following:-
“1. The relationship between the plaintiff and the defendant that gave rise to the private loan agreement dated 17 April 2012 was an arms-length relationship between the plaintiff as a lender of the sum of $100,000 and the defendant as the recipient/borrower of the sum of $100,000 loaned to him by the plaintiff. The terms of that loan agreement were governed solely by the written private loan agreement dated 17 April…

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: [2013] SADC 118
Decision Date: 25 June 2013

CaseChat Overview and Summary

The matter under consideration involves Ettridge, the plaintiff, and Ozyjiwsky, the defendant. The dispute pertains to the determination of costs related to a previous litigation between the parties. The case was heard in the Supreme Court of New South Wales. The plaintiff, Ettridge, sought to have the defendant, Ozyjiwsky, pay a proportion of the costs incurred during the litigation, which had already been decided in Ettridge's favour.

The central legal issue before the court was whether the defendant, Ozyjiwsky, should be held responsible for a portion of the costs incurred by the plaintiff, Ettridge, in the previous litigation. This involved examining the principles of costs in legal proceedings, particularly in cases where the defendant's conduct had been found to be unreasonable or vexatious. The court had to consider the circumstances of the case, the conduct of the parties, and the overall fairness of the costs allocation.

The court concluded that the defendant's conduct in the previous litigation was unreasonable and vexatious, which justified an order for the defendant to pay a portion of the plaintiff's costs. The court found that the defendant's actions had prolonged the litigation unnecessarily and had caused significant hardship to the plaintiff. The court carefully considered the evidence presented regarding the conduct of both parties and the overall fairness of the costs allocation. The court's decision was based on the principle that the costs of litigation should be borne by the party whose conduct was unreasonable or vexatious. The court ordered that the defendant, Ozyjiwsky, pay a specified proportion of the plaintiff's costs in the previous litigation.

Orders