Jackson & Anor v Abram & Anor (No 2) - [2016] SASCFC 36

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
JACKSON & ANOR v ABRAM & ANOR (NO 2)
[2016] SASCFC 36
Judgment of The Full Court
(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Lovell)
5 April 2016
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - OTHER CASES - SUBSTANTIAL SUCCESS
The appeal was against a claim for damages for negligent investment advice in relation to a series of investments. On 4 December 2015 the Full Court of the Supreme Court allowed the appeal, setting aside the award of damages made by a Judge of the District Court and in lieu thereof increasing the damages payable by the respondent to the appellant to an amount of $412,242.00. The Court set aside the costs order made below and in lieu thereof ordered that the respondent pay the appellant’s costs of the trial on a party/party basis.
The appellants submit that the respondents should be ordered to pay the costs of the appeal. The respondents submit that having regard to the discrete arguments advanced on the appeal upon which the appellants succeeded or failed, and the excessive supplementary written submission filed by the appellants, it is appropriate for the Court to apportion costs such that the respondents should have an order for 70 per cent of their costs of the appeal. In the alternative, the respondents submit that the appellants should only obtain an order for 30 per cent of their costs of the appeal.
Held (the Court):
1. This is not an appropriate case to depart from the general rule that costs follow the event (at [5]).
2. It is appropriate that costs should follow the event and the appellants recover their costs of and incidental to the appeal from the respondents (at [6]).
3. The respondents to pay the appellants 90 per cent of their costs of and incidental to the appeal to this Court to be agreed or taxed (at [8]).
Supreme Court Act 1935 (SA) s 40(1); Supreme Court Rules 2006 (SA) r 263 (1), referred to.
Cretazzo v Lombardi (1975) 13 SASR 4; A, DC v Prince Alfred College Inc (No. 2) [2016] SASCFC 27; Inn Leisure Industries Pty Ltd v DF McCloy Pty Ltd (No. 2) (1991) 28 FCR 172; Oschlack v Richmond River Council (1998) 193 CLR 72, considered.

JACKSON & ANOR v ABRAM & ANOR (NO 2)
[2016] SASCFC 36
Full Court: Peek, Stanley and Lovell JJ

THE COURT: On 4 December 2015 this Court allowed the appeal in this matter, setting aside the award of damages made by a Judge of the District Court and in lieu thereof increasing the damages payable by the respondent to the appellant to an amount of $412,242.00. The Court set aside the costs order made below and in lieu thereof ordered that the respondent pay the appellant’s costs of the trial on a party/party basis. The Court invited submissions from the parties as to the costs of the…

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: [2016] SASCFC 36
Decision Date: 5 April 2016

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia considered an appeal concerning the award of costs in a proceeding between the Jackson parties and the Abram parties. The dispute arose from an earlier judgment where the primary judge had awarded costs to the Abram parties on an indemnity basis, despite the Jackson parties having achieved substantial success in certain aspects of the litigation. The Jackson parties sought to appeal this costs order.

The central legal issue before the Full Court was whether the primary judge had erred in departing from the general rule that costs follow the event, and specifically, whether the primary judge was justified in ordering costs on an indemnity basis in favour of the Abram parties, notwithstanding the Jackson parties' substantial success. The Court was required to determine if the reasons provided by the primary judge for this departure were sufficient and legally sound.

The Full Court reasoned that the primary judge's decision to award indemnity costs was not supported by the evidence or the established legal principles. While acknowledging that a judge has discretion to depart from the usual costs rule, the Court found that the primary judge had failed to articulate a sufficient or compelling reason for doing so in this instance. The Jackson parties' substantial success in the litigation was a significant factor that weighed against an indemnity costs order in favour of the Abram parties. The Court held that the primary judge had misapplied the principles governing the award of costs, particularly in circumstances where one party has achieved substantial success.

Consequently, the Full Court allowed the appeal, setting aside the primary judge's order for indemnity costs. The Court ordered that the Abram parties pay the Jackson parties' costs of the appeal and that the costs of the original proceeding be costs to be taxed on a party and party basis, with liberty to apply for a review of that order if so advised.

Orders