Excelsior Land Holdings Pty Ltd v Alan Sheppard Constructions Pty Ltd

The Full Court of the Supreme Court of South Australia considered an appeal concerning costs between Excelsior Land Holdings Pty Ltd (appellants) and Alan Sheppard Constructions Pty Ltd (respondent). The dispute originated in the District Court where the respondent sought to enforce a lien for unpaid invoices. The matter reached the Full Court after an appeal to a single judge of the Supreme Court, with the parties agreeing to no order as to the costs of the Full Court appeal, certain notices, and interlocutory applications.

The central legal issues before the Full Court involved the proper exercise of discretion regarding costs, particularly in circumstances where a party succeeds on an alternative argument after their primary submission fails. The court was required to determine whether the general rule that costs follow the event should be departed from, and if so, on what basis, given the complex procedural history and the partial success of the respondent. This involved considering the validity of a second lien lodged after the first had lapsed due to failure to commence enforcement proceedings within the prescribed time, and the respondent's alternative arguments for an extension of time and amendment of the first lien.

The Full Court reasoned that while the respondent's primary argument regarding the District Court's power to enforce the second lien ultimately failed, it succeeded on an alternative basis that had been consistently argued. The court acknowledged that multiple events can arise in litigation, allowing for discrete cost orders for each. Applying this principle, and considering the significant resources expended on the unsuccessful primary submission, the court determined that justice would be served by ordering the appellants to pay 50 percent of the respondent's costs of the trial and the appeal to the single judge.