SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
HUTCHINSON v ELLIS
[2010] SASCFC 71
Judgment of The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice White
9 December 2010
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - PARTICULAR CASES - OTHER MATTERS - COSTS
Appeal against a costs order made in the District Court in proceedings under the Domestic Partners Property Act 1996 (SA) - in an action in the District Court both the plaintiff and defendant sought a division of assets - following the Judge's principal decision, an order was made for costs - where part of costs order included an order that the defendant pay the plaintiff's costs incurred from a particular time and date (referrable to an offer made by the plaintiff to settle the action) on a party/party basis - plaintiff complained on appeal that the Judge should have ordered the defendant to pay costs of the action prior to the time and date of the plaintiff's offer of settlement on a party/party basis, and subsequent to that time and date on an indemnity or solicitor/client basis.
Held: (Doyle CJ and Gray J): Appeal dismissed - a decision regarding costs will only be interfered with if the appellate court is satisfied that there is an identifiable error or if the exercise of the discretion has been so unreasonable or unjust as to require the appellate court to substitute its own discretion - the trial was one in which both parties sought and obtained a division of property, it was not a simple money claim - both parties were criticised by the Judge for their conduct during the litigation - the orders made by the Judge were open to him - no error of principle identified.
(White J, in dissent): the Judge's cost discretion miscarried - on re-assessment, would make an order that the defendant pay 70 per cent of the plaintiff's costs of the action on a party/party basis.
De Facto Relationships Act 1996 (SA); Domestic Partners Property Act 1996 (SA); District Court Act 1991 (SA) s 42(1); District Court Civil Rules 2006 r 187 and r 263(1); Civil Procedure Act 2005 (NSW) s 98(1); Uniform Civil Procedure Rules 2005 (NSW) cl 42.1; Family Law Act 1975 (Cth) s 117, referred to.
H, RT v E, CK (No 2) [2009] SADC 96; H, RT v E, CK [2009] SADC 76; House v The King (1936) 55 CLR 499; Norwest Refrigeration Services Pty Ltd v Baine Dawes (WA) Pty Ltd (1984) 157 CLR 149; Southern Resources Ltd v Residues Treatment & Trading Co Ltd (1990) 56 SASR 455; Forlyle Pty Ltd v Tiver (2007) 252 LSJS 387; Donald Campbell & Co Ltd v Pollak [1972] AC 732; Latoudis v Casey (1990) 170 CLR 534; Oshlack v Richmond River Council (1998) 193 CLR 72; Dunstan v Rickwood (No 2) [2007] NSWCA 266; Baker v Towle [2008] NSWCA…
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- Hutchinson v Ellis [2010] SASCFC 71
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- [2010] SASCFC 71
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CaseChat Overview and Summary
The central legal issue before the appellate court was whether the trial judge had erred in the exercise of his discretion regarding the costs order. Specifically, the plaintiff contended that the judge failed to give full effect to the finding that the plaintiff was the successful party and had been "forced" to bring the proceedings. The plaintiff argued for an award of all his costs, or at least a greater proportion than awarded, and for some costs to be on a solicitor/client basis.
Doyle CJ and Gray J, dismissing the appeal, held that an appellate court will only interfere with a costs order if there is an identifiable error or if the discretion has been exercised so unreasonably or unjustly as to require substitution. They noted that the trial involved a division of property, not a simple money claim, and that both parties had been criticised by the judge for their conduct during the litigation. The majority found that the judge's orders were open to him, no error of principle was identified, and the exercise of discretion was not so unreasonable or unjust as to warrant appellate intervention. White J, in dissent, considered the judge's discretion had miscarried and would have ordered the defendant to pay 70 per cent of the plaintiff's costs on a party/party basis.
Orders
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Background
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Evidence
Evidence Before The Court
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Ratio Decidendi
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Having given this background, the Judge then addressed the making of an appropriate costs order. He was critical of the manner of presentation of both parties’ cases and of the plaintiff’s formulation of his claim in his final submissions. The Judge said that, save for the second offer, the only appropriate order would have been that each party bear their own costs: [27]… As mentioned in the principal judgment, he sought to prove contributions to the relationship through tables provided to the defence on the first day of the trial. By trials end his counsel formulated a claim for the payment to him of some $277,000. His manner of presentation locked the defendant into responding to the schedules and consequently extended the length of the hearing. Both parties embarked upon a mode of proof contrary to the approach suggested by the authorities: Arnold v Dalton and Hogg v Roberts. [28]The defendant’s case was not without its blemishes either. Her manner of proof was non-specific. She was totally unresponsive to any offer throughout the proceedings and doggedly denied the entitlement by the plaintiff to a monetary adjustment. In his closing submission, the defendant’s counsel maintained that she should keep the Roxby Downs property and the plaintiff keep the Hahndorf property. Had things stood there, the only appropriate order was that each party bear their own costs of the proceedings.(Citations omitted)The Judge held, however, that the plaintiff’s second offer entitled him to an order for part of his costs, on a party/party basis:[29]Things stand quite differently, however, following the second offer, preceding the resumption of the trial between the 1st and 9th June 2009. A great deal of the evidence had been advanced by that stage. The plaintiff’s case was fully exposed and substantially tested under cross-examination. The defendant was in an ideal position to know exactly what the case against her was and what the risks were. The second offer was very close to the mark in terms of principal relief and apposite in point of time. Her failure to respond in any respect and to continue to resist to the bitter end, on a basis that was ultimately rejected, tells heavily against her. From this point onwards in the combined circumstances, it is clearly appropriate to give effect to the policy lying behind 6R 263. Accordingly as to the second part of the trial, the plaintiff should have his costs on a party/party basis, as and from 4pm Friday 29 May 2009.Consideration of Appeal Costs being in the discretion of the District Court under s 42 of the District Court Act 1991 (SA) and r 263 of the 2006 Rules, this Court can interfere with the Judge’s order for costs only in accordance with the principles stated in House v The King.[20][20] (1936) 55 CLR 499 at 505. The plaintiff contended on appeal that the Judge had erred by failing to award him the whole of his costs of trial, or at least a greater proportion than 50 per cent and, further, by failing to award at least some of the costs on a solicitor/client basis. His principal submission was that the Judge had failed to give full effect to his finding that it had been the plaintiff who was successful in the proceedings, and that it was the plaintiff who had been “forced” to bring the proceedings.