Holmes v Jefferis (No 2) - [2022] SASCA 74

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
HOLMES v JEFFERIS (No 2)
[2022] SASCA 74
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)
28 July 2022
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - INTERLOCUTORY PROCEEDINGS - COSTS IN THE CAUSE
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT - PARTIAL SUCCESS
On 30 June 2022, the Court of Appeal granted leave to appeal and allowed an appeal brought by the appellant against a decision of a judge of the District Court granting the respondent summary judgment and ordering that an account be taken before trial.
The appellant seeks an order that the respondent pay her costs of the respondent’s application before the District Court master, the appeal before the District Court judge and the appeal before this Court. The respondent contends that costs of the matters before the District Court master and judge should be costs in the cause and that the parties should bear their own costs of the appeal in this Court.
Held (the Court):
1.The respondent pay the appellant’s costs of and incidental to the respondent’s summary judgment application, as originally ordered by the master on 13 April 2021.
2.The respondent pay the appellant’s costs of and incidental to the appeal before the District Court judge.
3.The respondent pay the appellant’s costs of and incidental to the appeal to this Court.
4.The respondent pay the appellant’s costs of and incidental to addressing the question of costs.

Uniform Civil Rules 2020 (SA) r 194.4(5), referred to.
Whitehall Holdings Pty Ltd v Custom Credit Corporation Ltd [1992] WASC 356; Doss v Doss (1843) 18 ER 464; Holmes v Jefferis [2022] SASCA 63; Cretazzo v Lombardi (1975) 13 SASR 4; Sanders v Snell (No 2) (2000) 174 ALR 53; Re Madden (as Official Liquidator of Aquanaut Construction Pty Ltd) (In Liq) [2001] NSWSC 1051, considered.

HOLMES v JEFFERIS (No 2)
[2022] SASCA 74
Court of Appeal – Civil: Livesey P, Doyle & Bleby JJA
THE COURT:
Introduction

Following argument on 9 June 2022, on 30 June 2022 this Court granted leave to appeal and allowed the appeal. At the time reasons were delivered the court intimated that it was minded to make the following orders regarding costs:
1.The respondent physiotherapist is ordered to pay the appellant bookkeeper’s costs of the physiotherapist’s application for summary judgment, as originally ordered by the District Court master on 13 April 2021.
2.The physiotherapist is ordered to pay the bookkeeper’s costs of the appeal before the District Court judge.
3.The physiotherapist is ordered to pay the bookkeeper’s costs of this appeal.
When these orders were outlined the solicitor for the physiotherapist was not in a position to deal with costs and was given seven days…

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 Holmes v Jefferis (No 2)

Details

AGLC: Holmes v Jefferis (No 2) [2022] SASCA 74
Case: [2022] SASCA 74
Decision Date: 28 July 2022

CaseChat Overview and Summary

In *Holmes v Jefferis (No 2)*, the Supreme Court of South Australia considered an appeal by a physiotherapist (the applicant) against a decision of the master regarding an application for a summary order for an account against a bookkeeper (the respondent). The physiotherapist sought the order primarily on the basis that the bookkeeper had admitted to being an accounting party. The core of the dispute revolved around whether the physiotherapist had established a sufficient basis for an account to be ordered before trial, particularly in light of contested factual matters.

The legal issues before the Court concerned the appropriate costs orders to be made following the unsuccessful summary judgment application and subsequent appeals. Specifically, the Court had to determine whether the general rule that costs follow the event should apply, or if a different approach was warranted given the partial success of one party and the interlocutory nature of the proceedings. The physiotherapist argued for a costs order where parties bear their own costs, contending that the bookkeeper had only succeeded on some grounds and that the ultimate outcome of the trial remained uncertain.

The Court reasoned that the physiotherapist's application for a summary order for an account had failed because she had not established that the bookkeeper was liable to account at that stage, nor had she demonstrated that anything was owed. The Court found that a trial would likely be necessary to resolve the underlying factual disputes, rendering a pre-trial accounting order inappropriate and lacking utility. Consequently, the Court concluded that there was no proper basis for the physiotherapist's unsuccessful application before the master, and she ought to pay the costs of that application.

Regarding the costs of the appeals, the Court found that the physiotherapist's arguments for a departure from the general rule were not persuasive. The Court noted that the physiotherapist had conceded on appeal that the scope of the account was limited, and that a conventional trial would likely resolve the existence and amount of any shortfall. Therefore, the Court ordered that the physiotherapist pay the costs of the appeals.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is no inconsistency. Any apparent inconsistency is explained by the different positions of an applicant and a respondent on an application for summary judgment. As just explained, where a respondent succeeds, the basis upon which the respondent succeeds may or may not be made good at trial. By contrast, and assuming there is no material change to the issues litigated, where the applicant succeeds with a summary judgment application, by definition the applicant would have succeeded at trial.Determination of costs on summary judgment In this case the nature of the application for summary judgment is relevant to determining whether to make an order in favour of the ultimately successful respondent. In this case, the physiotherapist sought a summary order for an account principally on the basis that the bookkeeper admitted that she was an accounting party. The key to the physiotherapist’s case on summary judgment was that a summary order for an accounting should be made before the trial. There was a contest between the parties as to whether the ‘rule’ in Doss v Doss (1843) 18 ER 464 applied and, in consequence, whether the physiotherapist first needed to establish that something was owed by the bookkeeper. This Court ruled that the physiotherapist had failed to establish that the bookkeeper was liable to account at this time, in part because the physiotherapist had not yet established whether anything was or would ever be due. In addition, this Court found that a trial would only be avoided if the accounting became a trial. As the physiotherapist failed on those contentions, there was no proper basis to seek an account before trial and there is no reason why she ought not be ordered to pay the costs of her unsuccessful application before the master. The submissions on the costs of the appeals As to the costs of the appeals, the physiotherapist submits that although this Court has determined that there should be no summary order for an account at this time, it has not determined that there should never be an account, particularly as the bookkeeper is an admitted accounting party. The physiotherapist emphasises that this Court determined that there are various factual matters presently in dispute which explained why an order for an account should not have been made at this time.[3] The physiotherapist submits that one possible outcome of the trial is that the bookkeeper will fail on the factual matters presently in dispute and “as a result, her basis for opposing an order for an account and prosecuting this appeal will fall away”. [3] Holmes v Jefferis [2022] SASCA 63, [113]-[123] (Livesey P and Bleby JA), [131] (Doyle JA). In the alternative, the physiotherapist submits that the bookkeeper succeeded on some but not all grounds and that costs were necessarily incurred in addressing all of the grounds. On this basis, it is submitted that the appropriate order is that the parties bear their own costs of the appeal to this Court. The bookkeeper submits that this Court found that an order for an account at this time lacked utility because the physiotherapist conceded on appeal that the account was confined to the bookkeeper’s activities in taking monies from the cash tin and banking them.[4] The bookkeeper emphasises the finding by this Court that following a conventional trial “the existence and amount of any shortfall will have been established”.[5] As a result, the bookkeeper submits that it is unlikely that there will ever be an order for an account to be taken. [4] Holmes v Jefferis [2022] SASCA 63, [120] (Livesey P and Bleby JA), [130] (Doyle JA).[5] Holmes v Jefferis [2022] SASCA 63, [118] (Livesey P and Bleby JA) (with whom Doyle JA agreed).Determination of costs on the appeals

Ratio Decidendi

Legal Principle Established

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