H, AW v K, S - [2023] SASCA 49

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
H, AW v K, S
[2023] SASCA 49
Judgment of the Honourable President Livesey (ex tempore)
10 May 2023
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL MATTERS - NATURE OF COSTS: INDEMNITY DOCTRINE
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - SECURITY FOR COSTS
The successful respondent to an appeal, H, AW v K, S [2023] SASCA 26, sought the payment out of security paid into court by the appellant. The appellant contested the application, contending that payment out can only be made in satisfaction of the costs order made by the Court of Appeal.
Held (Livesey P) allowing the application for payment out to the respondent and ordering that the appellant pay the respondent’s costs of the application on an indemnity basis:
1.Security for costs operates as a form of protection on account of the costs to be incurred. It is not in any sense a substitute for the right to claim costs.
2.By failing to agree to an order for payment out to the respondent and contesting the application, the appellant embarked on a course that must be described as both unreasonable and hopeless.

Uniform Civil Rules 2020 (SA) r 114.4, 194.3, referred to.
Allstate Life Insurance Co & Ors v Australia and New Zealand Banking Group Ltd & Ors (No 19) (1995) 134 ALR 187; Eastgate Properties Pty Ltd v J Hutchinson Pty Ltd [2005] QCA 342; Emanuel Management Pty Ltd (in liq) v Foster's Brewing Group Ltd [2003] QCA 552; Freedom Foods [2021] FCA 461; GB Procon Ltd v Provincial Building Co Ltd [1984] 2 All ER 368; H, AW v K, S (No 2) [2022] SASCA 88; H, AW v K, S [2023] SASCA 26; Viscarello v Livesey [2014] SASCFC 40, considered.

H, AW v K, S
[2023] SASCA 49
Court of Appeal – Civil
LIVESEY P:

By an application dated 17 April 2023 the successful respondent to this appeal seeks the payment out of security paid into court by the appellant.[1]
[1] Payment out is addressed by r 114.4(1)(a) of the Uniform Civil Rules 2020 (SA).
The payment of security had been ordered on 1 September 2023 on account of the respondent’s costs of the appeal.[2] On 16 March 2023 the respondent was awarded her costs of the appeal by the Court of Appeal.[3]
[2] H, AW v K, S (No 2) [2022] SASCA 88 (Bleby JA). His Honour ordered security in the amount of $25,000 where estimates exceeding $35,000 had been offered. The appellant’s claim for costs now exceeds $140,000.
[3] H, AW v K, S [2023] SASCA 26 (Livesey P, Doyle and Bleby JJA).
The appellant contends that payment out can only be made in satisfaction of the costs order made by the Court of Appeal.
Security for costs operates as a form of protection on account of the costs to be incurred. It is not in…

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 H, AW v K, S

Details

AGLC: H, AW v K, S [2023] SASCA 49
Case: [2023] SASCA 49
Decision Date: 10 May 2023

CaseChat Overview and Summary

In *H, AW v K, S* [2023] SASCA 26, the appellant contested an application by the successful respondent for the payment out of security for costs that had been paid into court. The appellant argued that the security could only be released in satisfaction of the costs order made by the Court of Appeal.

The central legal issue before the Court was whether security for costs paid into court could be paid out to a successful respondent in satisfaction of their costs, or if it was solely to be held pending a final costs order.

Livesey P, allowing the respondent's application, reasoned that security for costs serves as a protection for costs to be incurred and is not a substitute for the right to claim those costs. The Court found that the appellant's opposition to the payment out, in circumstances where the respondent had been successful on appeal, was both unreasonable and without merit. Consequently, the Court ordered the payment out of the security to the respondent and awarded the respondent their costs of the application on an indemnity basis.

Orders

Orders of the court

The successful respondent to an appeal, H, AW v K, S [2023] SASCA 26, sought the payment out of security paid into court by the appellant. The appellant contested the application, contending that payment out can only be made in satisfaction of the costs order made by the Court of Appeal.

Held (Livesey P) allowing the application for payment out to the respondent and ordering that the appellant pay the respondent’s costs of the application on an indemnity basis:

1. Security for costs operates as a form of protection on account of the costs to be incurred. It is not in any sense a substitute for the right to claim costs.

2. By failing to agree to an order for payment out to the respondent and contesting the application, the appellant embarked on a course that must be described as both unreasonable and hopeless.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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