Ironwill v Allbut

[2021] SADC 24

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

IRONWILL v ALLBUT & ANOR (No 2)

[2021] SADC 24

Judgment of his Honour Judge Burnett  

16 March 2021

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT - EVENT: WHAT CONSTITUTES

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - DEPRIVING SUCCESSFUL PARTY OF COSTS - CONDUCT OF PARTY OR PROCEEDING - INFLATED CLAIMS

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS - INFORMAL OFFERS AND CALDERBANK LETTERS

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - INTEREST ON JUDGMENTS - TIME FROM WHICH INTEREST RUNS

At trial, the Court ordered that the applicant was entitled to damages for loss of profits in the sum of $50,000 and that the counter-claim made by the respondents was liable to be dismissed. The claim of the applicant was for damages for repudiation of a contract for the hire of a Caterpillar D7H Bulldozer that the applicant had entered into with the respondents. The applicant’s loss arose because it was unable to complete as much land clearing work under a contract it held with a third party to clear certain properties in New South Wales. 

The applicant sought interest from a mid-way point of the relevant period of the land clearing contract. The respondents submitted that interest should be calculated from the date of the issue of the proceedings.

The applicant sought indemnity costs on the basis of an informal or Calderbank offers that had been made by it prior to the institution of the proceedings. Alternatively, the applicant sought party party costs on the standard basis. The respondents submitted that there be no order as to costs or alternatively, the respondents pay the applicant 5% of its costs, but not including costs associated with the obtaining of expert reports.

In its statement of claim the applicant sought damages in the sum of $966,745. In its closing address, it sought damages in the sum of $544,089. Ultimately, following receipt of a fourth expert report, the applicant reduced its claim for damages to between $77,858 and $102,604. Ultimately, it received $50,000 in damages.

In these circumstances, the respondents submitted that the applicant had not been successful in the proceedings or had only been nominally successful. The respondents further submitted that the applicant’s claim, in the circumstances described above, had been exaggerated. The respondents also submitted that there had been wasted costs associated with the obtaining of the further expert reports. 

Held:

1.     The applicant is entitled to interest from the mid-way point of the land clearing contracts.

2. Pre-judgment interest is included in the judgment and is to be considered part of the award for the purposes of considering whether the applicant obtained more than $60,000; Conroy’s Smallgoods Pty Ltd v Channel Seven Adelaide Pty Ltd [2007] SASC 76 applied.

3.     The applicant is not entitled to indemnity costs…