Koo v ACN 060 477 830 Pty Ltd (in Liquidation)

[2013] SASCFC 71

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

KOO & ORS v ACN 060 477 830 PTY LTD (IN LIQUIDATION)

[2013] SASCFC 71

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Blue)

8 July 2013

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY

The applicants seek permission to appeal against an order by a District Court Judge which reduced the interest applied to costs awarded by a Master on a costs adjudication. The proposed grounds are that the Judge failed to give sufficient reasons for his findings of error on the part of the Master and for his own exercise of the discretion to fix interest.

Held:

Per the Court:

(1) The proposed notice of appeal does not raise any question of principle requiring resolution: it merely involves the application of settled principles concerning interest on costs and the sufficiency of reasons to the particular facts (at [8]).

(2) The decision of the Judge is not attended by sufficient doubt to warrant the grant of permission to appeal (at [9]).

(3) The application for permission to appeal is refused (at [11]).

Supreme Court Civil Rules 2006 (SA) 4 288(1)(b), referred to.
Hamilton-Smith v Bernsteen Pty Ltd (in liq) [2005] SASC 190, applied.

KOO & ORS v ACN 060 477 830 PTY LTD (IN LIQUIDATION)
[2013] SASCFC 71

Civil:       Application for leave to appeal

Full Court:      Gray, Sulan and Blue JJ

The Court:

1. The applicants seek permission to appeal against an order by a District Court Judge which reduced the interest applied to costs awarded by a Master on a costs adjudication from $157,071.95 to $111,155.75.

2. The applicants were the defendants in a District Court action.  On 14 April 2009, judgment was entered for the defendants by consent.  On 5 June 2009, an order was made that the plaintiff pay the defendants’ costs of action to be taxed on a party/party basis up to 17 June 2008 and on an indemnity basis from 18 June 2008.

3. On 27 September 2010, the defendants filed and served a short form bill of costs, to which the plaintiff responded within 28 days.  On 29 April 2011, the defendants filed and served an application to proceed to adjudication.

4. The adjudication then proceeded under the control of the Master and culminated in allocaturs for the costs.

5. Before the Master, the defendants applied for interest on the costs calculated from the various dates of payment of costs to their solicitors, which generally predated the judgment entered on 14 April 2009.  The plaintiff argued that the interest should be calculated from the conclusion of the adjudication, or in the alternative from the date of judgment.  The Master awarded interest on costs calculated from the date of payment by the defendants to their solicitors.  The Master rejected an alternative contention by the plaintiff that interest should not be awarded in respect of the period from 5 June 2009 to 29 April 2011 due to delays by the defendants in producing a short form bill and then in applying to proceed to adjudication.

6. On appeal, the Judge concluded that the Master had erred in not taking into account delay by the defendants between June 2009 and April 2011, such error being ascertained from the Judge’s own assessment of the delay coupled with the Judge’s conclusion that the Master did not provide any substantive reasons for characterising the delay as “not … unreasonable”.  The Judge disallowed interest for the period 5 June 2009 to 29 April 2011, less allowances which he made totalling several months for specific activities which he identified.

7. The applicants seek permission to appeal on the ground that the Judge failed to give sufficient reasons for his findings of error on the part of the Master and for his own exercise of the discretion to fix interest. 

8. Permission to appeal is required because the proposed appeal is limited to a question about costs.[1]  In general, leave to appeal against a costs order requires an important question of principle requiring resolution to be identified as opposed to the application of settled principle to particular facts.[2]  The proposed notice of appeal does not raise any question of principle requiring resolution.  It simply involves the application of settled principles concerning interest on costs and the sufficiency of reasons to the particular facts.

   [1]    Supreme Court Civil Rules 2006 (SA) rule 288(1)(b).

   [2]    Hamilton-Smith v Bernsteen Pty Ltd(in liq) [2005] SASC 190 at [26] per Gray, Sulan and White JJ.

9. In any event, the decision of the Judge is not attended by sufficient doubt to warrant the grant of permission to appeal.  On the face of the Court record, there was a very long delay between the making of the costs order in June 2009 and the preparation of the short form bill of costs in September 2010 and again between the response thereto in October 2010 and the application to proceed to adjudication in April 2011.  The Judge gave specific reasons for rejecting each of the substantive explanations for the delay proffered on behalf of the defendants.  It has not been demonstrated that it is sufficiently arguable that the Judge’s reasons were insufficient or that they did not justify the conclusion reached by the Judge.  Nor has it been demonstrated that it is sufficiently arguable that the Judge erred in concluding that the Master did not explain why the delay was not unreasonable or that the Judge erred in reaching the conclusion that the delay was unreasonable.

10. For the sake of completeness, we observe that no issue arises on the application for permission as to whether the date from which interest was to be calculated should have been the date of adjudication or of judgment as opposed to the dates on which the costs were paid by the defendants to their solicitors.

11. The application for permission is refused.