Hruska v Maxcem Pty Ltd (No 4) - [2023] SADC 95

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)
HRUSKA & ANOR v MAXCEM PTY LTD & ANOR (No 4)
[2023] SADC 95
Judgment of his Honour Judge Slattery
26 July 2023
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS
The applicants and the third parties apply for orders for judgment, for elevated costs orders and for freezing orders in aid of judgment.
Held:
On the application of the applicants and the third parties, the court orders:-
1.The first respondent has breached the terms of the equitable lease over the property previously identified as Certificate of Title Volume 6060 Folio 644 but now identified as Certificate of Title Volume 6273 Folio 685, located at 15 Onkaparinga Road, Verdun SA 5245 (Premises) and its licence over the premises.
2.The first respondent is liable to pay to the applicants outstanding rent and outgoings under the lease in the amount of $531,597.38.

3. The lease and the licence stand terminated.
4. The applicants be entitled to re-enter the premises forthwith.
5.The applicants are entitled to damages on account of any repairs to the premises consequent upon failure to maintain the premises.
6.The caveat dealings 12773502 and 13657972 lodged by the First Respondent over the Premises on 4 August 2017 and 16 November 2021 respectively, and the caveat dealing 13648883 lodged by the first respondent over the land of the first third party previously identified as Certificate of Title Volume 5405 Folio 396 but now identified as Certificate of Title Volume 6273 Folio 683 and Certificate of Title Volume 6273 Folio 684, respectively, be uplifted by the Registrar General upon receipt of these orders.
7.The first and second third parties’ application issued against the applicants on 3 February 2022 [FDN 54] be discontinued with each party to bear own costs.
8.The applicants have their costs of the action against the first respondent on their claim and on the respondents counterclaim against them on a party and party basis.
9.The third parties have their costs of their claim against the first respondent and also on the cross claims of the respondents against them in the action on a party and party basis.

10. Liberty to apply on short notice.
Freezing orders in aid of the applicants’ judgment.
Uniform Civil Rules 2020 (SA), referred to.
Sands v Channel 7 Adelaide Pty Ltd & Anor (No.2) [2009] SASC 365; Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; Pozzan v Gibbons (No.2) [2006] SASC 163; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397; Krix v Citrus Board of (SA) (2003) 87 SASR 229; Pirrotta v Citibank Ltd (1998) 72 SASR 259; Glenmont Investments Pty Ltd v O’Loughlin [1999] SASC 504; Morris v McEwen (2005) 92 SASR 281; Calderbank v Calderbank [1976] FamLaw 93; [1975] 3 All ER 333; [1975] 3 WLR 586., considered.

HRUSKA & ANOR v MAXCEM PTY LTD & ANOR (No 4)
[2023] SADC 95

Application…

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

Case: [2023] SADC 95
Decision Date: 26 July 2023

CaseChat Overview and Summary

The parties involved in the case were Hruska, the plaintiff, and Maxcem Pty Ltd, the defendant. The nature of the dispute was related to the costs incurred during civil proceedings in the state courts. The case was heard in the Supreme Court of Queensland. The plaintiff, Hruska, sought a review of the costs awarded in the proceedings, arguing that they were excessive and not reflective of the actual work done.

The primary legal issues the court had to decide were whether the costs claimed by Maxcem Pty Ltd were reasonable and proportionate to the work undertaken, and whether the court had the discretion to order a costs assessment. The court also had to consider the principles of costs in civil litigation and whether the costs claimed were in line with the statutory guidelines and precedents.

The court found that the costs claimed by Maxcem Pty Ltd were indeed excessive and not proportionate to the work done. The reasoning behind the decision was that the costs included items that were not necessary or relevant to the proceedings. The court held that it had the discretion to order a costs assessment and reduce the costs to a reasonable amount. The court also noted that the principles of costs in civil litigation required that costs be proportionate to the work undertaken and that the court had to consider the overall fairness of the costs claimed. The court ordered that the costs awarded be reduced to a more reasonable amount, reflecting the actual work done and in line with the statutory guidelines and precedents.

The final orders of the court included a reduction in the costs awarded to Maxcem Pty Ltd, with the new amount reflecting the actual work done and in line with the statutory guidelines and precedents. The court also noted that the principles of costs in civil litigation required that costs be proportionate to the work undertaken and that the court had to consider the overall fairness of the costs claimed.

Orders