Jennings v Oswell Pty Ltd (in liquidation)

Jennings v Oswell Pty Ltd (in liquidation) was a case involving a dispute over costs between the plaintiff, Jennings, and the defendant, Oswell Pty Ltd, which was in liquidation. The case was heard in the Supreme Court of South Australia. The central issue was whether the costs reserved by RR Douglas J in a previous judgment could be disposed of in a later judgment, and whether the misapprehension of the plaintiff's counsel could be taken into account in determining the costs.

The court had to consider whether the costs reserved by RR Douglas J on the standard basis could be assessed and paid by the plaintiff to the original liquidators on the indemnity basis in a subsequent judgment. Additionally, the court needed to determine whether the misapprehension of the plaintiff's counsel, which was not withdrawn until the day before the hearing, could be taken into account in deciding the costs. The court found that the misapprehension of the plaintiff's counsel, coupled with the failure to withdraw it promptly, justified the departure from the general rule and allowed for the costs to be assessed on the indemnity basis.

The court reasoned that the misapprehension of the plaintiff's counsel regarding the costs reserved in a previous judgment was significant and was not withdrawn until the day before the hearing. This late withdrawal and the resulting confusion warranted a departure from the general rule of costs following the event. The court concluded that the costs of and incidental to the application should be paid by the plaintiff to the original liquidators on the indemnity basis. The costs reserved by RR Douglas J were to be assessed separately.

The final orders were that the costs reserved by RR Douglas J were to be assessed on the standard basis. Additionally, the costs of and incidental to the application heard on 31 March 2004 were to be paid by the applicant to the original liquidators on the indemnity basis. These costs were also to be assessed.