COSTS – Application for indemnity costs following appeal – where respondent was successful in substantive proceedings – whether indemnity costs warranted
Mr Rabea Faris (the appellant) brought an appeal in relation to proceedings initiated by Ms Gail Savage (the respondent) in the Magistrates Court. The Magistrates Court proceedings related to building and landscaping works carried out by the appellant at the respondent’s residential property. The respondent was successful in her claim: see Savage v Faris [2018] ACTMC 17. The sole basis of the appeal to this court was the claim…
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
AGLC
Faris v Savage (No 3) [2021] ACTSC 60
Case
[2021] ACTSC 60
Decision Date
CaseChat Overview and Summary
The appeal was brought by Rabea Hatem Faris (the appellant) against Gail Savage (the respondent) in relation to proceedings initiated by the respondent in the Magistrates Court, concerning building and landscaping works carried out by the appellant. The respondent was successful in her claim, and the appellant brought an appeal on the basis that his former solicitor had been incompetent, which caused a miscarriage of justice. The appeal was dismissed, and the appellant was ordered to pay the respondent’s costs of the appeal. The respondent now seeks an order for the costs of the appeal proceedings to be awarded on an indemnity basis.
The court considered whether there were any exceptional circumstances that would justify an order for indemnity costs. The court noted that indemnity costs orders should be reserved for the most unreasonable actions by unsuccessful parties. The court considered the offers of settlement made by the respondent, the pursuit of hopeless grounds in the appeal, and the appellant's procedural delinquency. However, the court was not persuaded that this was an appropriate case for the award of indemnity costs.
The court concluded that justice required that solicitor and client costs be awarded on the appeal proper, and that indemnity costs should not be awarded. The court made an order that the appellant is to pay the respondent’s costs of the appeal proceedings on a solicitor and client basis.