Hutchinson v Ellis

The appeal concerned a costs order made by the District Court in proceedings under the *Domestic Partners Property Act 1996* (SA). The plaintiff appealed against the order, arguing that the trial judge should have awarded him a greater proportion of his costs, and on a solicitor/client basis for part of the proceedings, rather than the party/party basis ordered by the judge from a specific date. The dispute arose after a 12-day trial where both parties sought a division of assets, and the judge made orders dividing their property.

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.