H, AW v K, S

[2022] SASCA 69

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

H, AW v K, S

[2022] SASCA 69

Judgment of the Honourable Justice Bleby  

18 July 2022

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - GENERALLY

On 11 November 2021, a judge of this Court dismissed both the applicant’s claim and the respondent’s counterclaim. Each party then made an application for costs in their own favour.

The respondent had filed a formal offer with the Court in accordance with the Rules, to which the applicant did not respond. In her costs judgment, the judge held that the respondent was entitled to her costs in respect of the claim and counterclaim on the standard costs basis from 7 February 2019 to 25 November 2020 (that date being 14 days after the filing of the formal offer) and that from 25 November 2020, she was entitled to her costs on an indemnity basis.

The applicant now appeals against that costs judgment. The question is whether leave to appeal should be granted.

Held, per Bleby JA:

1.      The applicant’s contentions are reasonably arguable. Leave to appeal is granted.

H, AW v K, S [2021] SASC 128; H, AW v K, S (No 2) [2022] SASC 49; Coles v Wood [1981] 1 NSWLR 723; Zavarco plc v Nasir [2022] Ch 105; Ekes v Commonwealth Bank of Australia [2014] NSWCA 336; Zetta Jet Pte Ltd v The Ship Dragon Pearl (No 2) (2018) 265 FCR 290; Clayton v Bant (2020) 95 ALJR 34, considered.

H, AW v K, S

[2022] SASCA 69

Court of Appeal – Civil

1. BLEBY JA:     By a judgment dated 11 November 2021, the primary judge in this matter dismissed both the applicant’s claim and the respondent’s counterclaim.[1] The applicant sought a declaration that the respondent held a sum of money on trust for him and that he owned a motor vehicle which remained in her possession. He sought restitution of the money in the alternative. The primary judge concluded that the motor vehicle and the money were gifts to the respondent and thus not subject to a claim in restitution.

   [1]     H, AW v K, S [2021] SASC 128.

2. The respondent’s counterclaim sought a declaration that she and the applicant were in a de facto relationship. The primary judge concluded that they were not. She dismissed the application for a declaration to that effect. Each party then made an application for costs in their own favour.

3. Relevantly, on 11 November 2020, the respondent had filed a formal offer with the Court. That comprised an offer to consent to judgment on the applicant’s claim on the basis that there be judgment for the applicant in the sum of $21,769 (inclusive of interest) to be paid by the respondent, with the claim otherwise dismissed. On the counterclaim, she offered to consent to judgment on the basis that a declaration be made that…