Fardi v Loveday (No 2) - [2010] SADC 82

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
FARDI v LOVEDAY (NO. 2)
[2010] SADC 82
Judgment of His Honour Judge Nicholson
25 June 2010
PROCEDURE - COSTS
Unrepresented plaintiff failed at trial - damaging credit findings - consideration of whether defendant's costs should be taxed on a solicitor and own client basis.
HELD: Plaintiff to pay the defendant's costs on a party and party basis.
District Court Act 1991, referred to.
Cretazzo v Lombardi (1975) 13 SASR 4; Donald Campbell & Co. v Pollak [1927] AC 732; Hamod v New South Wales (2002) 188 ALR 659; Colgate-Palmolive Co. & Anor v Cussons Pty Ltd (1993) 46 FCR 225; Spalla v St George Motor Finance Ltd and Ors (No. 8) [2006] FCA 1537, considered.

FARDI v LOVEDAY (NO. 2)
[2010] SADC 82

In the principal judgment delivered in this matter,[1] I dismissed the plaintiff’s application for damages in circumstances where liability had been admitted in connection with a slow speed, low impact motor vehicle accident involving the plaintiff as the driver of one car and the defendant as the driver of the other. Ordinarily, the costs of the trial would follow the event and an order made that the plaintiff pay the defendant’s costs of trial on a party and party basis. However, the defendant has applied for an order that the plaintiff pay her costs of trial on a solicitor and own client basis.
[1] Fardi v Loveday [2010] SADC 25.
In dismissing the plaintiff’s claim, I came to the following conclusion:[2]
In [the] circumstances, the plaintiff is not entitled to any damages award for non-economic loss. Furthermore, I am not satisfied that the plaintiff suffered any loss of earning capacity as a result of, that is, caused by, the accident. The plaintiff has not established that he has suffered any other financial loss as a result of, that is, caused by, the accident.
[2] At [206].
Prior to arriving at that conclusion, I made a number of findings of fact many of which were extremely critical of the plaintiff’s credit and as to the plaintiff’s behaviour with respect to the litigation itself but also, in particular, with respect to his dealings with various medical practitioners and financial organisations with whom he had engaged over many years between shortly prior to the accident in 2000 and the trial period. Those findings are either referred to or set out in paragraph [205] of the principal judgment and in the defendant’s written submission in support of her costs argument filed 23 March 2010. I will not set out those findings again here.
Section 42 of the District Court Act 1991 provides that, subject to the Rules, costs in any proceedings in the Civil Division will be in the discretion of the Court. Costs ordinarily follow the event and a successful party usually will receive a costs order in their favour. Furthermore, costs ordinarily will be awarded on a party and party basis unless there are special…

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 Fardi v Loveday (No 2)

Details

AGLC: Fardi v Loveday (No 2) [2010] SADC 82
Case: [2010] SADC 82
Decision Date: 25 June 2010

CaseChat Overview and Summary

In Fardi v Loveday (No 2), the plaintiff, proceeding unrepresented, faced a trial loss with adverse credit findings. The defendant sought to have costs taxed on a solicitor and client basis, given the plaintiff's failure at trial and the adverse credit findings. The court was tasked with determining whether the plaintiff's lack of representation and the negative credit findings justified taxing the defendant's costs on a solicitor and client basis.

The court examined whether the plaintiff's unrepresented status and the adverse credit findings warranted the defendant's costs being taxed on a solicitor and client basis. The court considered the principles governing costs in litigation, including the general rule that costs follow the event and the discretion of the court in taxing costs. The court also evaluated whether the plaintiff's failure at trial and the adverse credit findings were significant enough to warrant a deviation from the usual costs order.

The court concluded that the plaintiff's unrepresented status and the adverse credit findings were substantial factors that warranted taxing the defendant's costs on a solicitor and client basis. The court found that the plaintiff's failure at trial and the negative credit findings justified a higher costs order against the plaintiff. The court exercised its discretion to ensure that the defendant was adequately compensated for the costs incurred due to the plaintiff's unrepresented status and the outcome of the trial.

The court ordered that the defendant's costs be taxed on a solicitor and client basis, reflecting the significant factors of the plaintiff's unrepresented status and the adverse credit findings. The court's decision was based on the principles of fairness and the need to ensure that the defendant was adequately compensated for the costs incurred.

Orders