Fitzgerald v Brock Real Estate (No 2)

[2009] SASC 286

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Civil)

FITZGERALD v BROCK REAL ESTATE & ORS (No 2)

[2009] SASC 286

Judgment of The Honourable Justice Gray

11 September 2009

PROCEDURE - COSTS - SCALES OF COSTS - SCALE APPLICABLE

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF WHOLE ACTION - GENERALLY

Costs – appropriate order for costs – where the vendors sought application for a special order for costs with respect to the trial on basis of conduct of purchaser/plaintiff or in the alternative, the costs of trial on the complex actions scale – appropriate order for costs with respect to appeal by purchaser, appeal by real estate agent and cross-appeal by vendors.

Held: issue of costs of trial remitted to trial Magistrate for hearing and determination – in circumstances of full indemnity between real estate agent and purchaser, real estate agent to pay both appeal and cross-appeal costs of vendors to be taxed on party/party scale – no special circumstances existed to warrant order for solicitor/client costs of appellate proceedings.

Magistrates Court (Civil) Rules 1992 (SA), referred to.

FITZGERALD v BROCK REAL ESTATE & ORS (No 2)
[2009] SASC 286

Magistrates Appeal

GRAY J.

1. Counsel for Mr and Mrs Goodall sought an order for costs both of the trial and of the appeal proceedings on a solicitor/client basis and on the Supreme Court Scale.  These orders were opposed by Brock Real Estate.  It was contended that Ms Fitzgerald should pay the costs of Brock Real Estate and Mr and Mrs Goodall in respect of the appeal initiated by her and that Brock Real Estate and Ms Fitzgerald should pay the Goodalls the costs of their cross appeal and that no order should be made as to the costs in the appeal lodged by Brock Real Estate.  It was further contended that Ms Fitzgerald should pay the costs of Brock Real Estate and the Goodalls in respect of the trial in the Magistrates Court in accordance with Scale 1 in the third Schedule to the Magistrates Court (Civil) Rules 1992 (SA).

2. The Goodalls put an alternative submission that in the event that they were not to recover Supreme Court Scale costs in respect of the trial, that they recover costs of the trial in accordance with Scale 2 (Complex Actions) of the third Schedule of the Magistrates Court (Civil) Rules.

3. The Goodalls, in support of their application for a special order for costs with respect to the trial relied on a number of factors, including what was said to be claims defamatory in nature, a false claim in deceit that inflated the nature of Ms Fitzgerald’s claim and unnecessarily prolonged the duration of the trial, the failure of Ms Fitzgerald to accept to an offer to consent to judgment that was open for a closed period of time.  In regard to the alternative claim, it was said that the action should be treated as a complex action because of the unusual difficulty and intricacy of the claims and because of the unsubstantiated allegations of deceit. 

4. Although there is a desirability of these matters being resolved in this Court, the issues raised by the Goodalls require a detailed understanding of the trial process.  The trial Magistrate is, in the particular circumstances of this matter, better equipped to adjudicate the claim for costs, and accordingly that matter should be remitted to the Magistrate for hearing and determination. 

5. As far as the appeal is concerned, I consider it appropriate to make the one order as to costs in respect of the two appeals and the cross-appeal. The Court was informed that Brock Real Estate had settled their differences with Ms Fitzgerald in circumstances where she was fully indemnified in regard to any claim for costs awarded in favour of the Goodalls.  In those circumstances the appropriate order is that Brock Real Estate pay the Goodalls their costs of the appeal proceedings in both action number 1708 of 2008 and action number 707 of 2009 as well as the costs of their cross-appeal in action number 1708 of 2008.  Those costs are to be taxed on a party/party scale.  I reject the submission of the Goodalls that special circumstances existed such as to warrant an order for solicitor/client costs of the appellate proceedings.

   Conclusion

6. I order that the cost of the trial proceedings be remitted to the trial Magistrate.  I order that Brock Real Estate Pty Ltd pay the costs of Mr and Mrs Goodall of the appeals and cross appeal in action numbers 1708 of 2008 and 707 of 2009 to be taxed.