Living Australia Pty Ltd v Rans Consulting Group Pty Ltd (No 2)

[2019] SASC 113

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Civil)

LIVING AUSTRALIA PTY LTD v RANS CONSULTING GROUP PTY LTD (NO 2)

[2019] SASC 113

Judgment of The Honourable Justice Hinton

5 July 2019

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT

Application for costs.

On 24 May 2019 this Court allowed the appellant’s appeal against an order of a Magistrate refusing an application to set aside a default judgment. The appellant applied for its costs of and occasioned by the appeal and the related application made in the Magistrates Court.

Held, allowing the application in part: (i) the respondent is to pay the appellant’s costs of the appeal less all costs incurred by the appellant in prosecuting the fifth ground of appeal; (ii) there is no order as to costs on the respondent’s application for security for costs and the appellant’s application to set aside the default judgment made in the Magistrates Court; and (iii) the appellant is to pay the respondent’s costs of and occasioned by the appellant’s interlocutory application seeking orders facilitating the urgent determination of the appeal.

Magistrates Court Act 1991 (SA) s 37; Supreme Court Act 1935 (SA) s 40; Supreme Court Civil Rules 2006 (SA) r 281, referred to.
Living Australia Pty Ltd v Rans Consulting Group Pty Ltd [2019] SASC 86, considered.

LIVING AUSTRALIA PTY LTD v RANS CONSULTING GROUP PTY LTD (NO 2)
[2019] SASC 113

Magistrates Appeal

HINTON J:

1. On 24 May 2019, consequent upon this Court allowing the appellant’s appeal against an order of a Magistrate refusing an application to set aside a default judgment,[1] the appellant applied for its costs of and occasioned by the appeal and the related application made in the Magistrates Court. These reasons deal with that application for costs.

   [1]    Living Australia Pty Ltd v Rans Consulting Group Pty Ltd [2019] SASC 86.

2. It is necessary to say something more about the history of the proceedings.

3. On 29 March 2019 the appellant filed a Notice of Appeal instituting the appeal in this Court against the order to which I have referred. [2] That order was made on 8 March 2019.

   [2]    FDN 1.

4. On 8 April 2019 the appellant filed an interlocutory application seeking orders facilitating the urgent determination of the appeal (the first interlocutory application).[3]

   [3]    FDN 2.

5. On 10 April 2019 the respondent filed a Notice of Cross-Contention[4] and subsequently an Amended Notice of Cross-Contention.[5]

   [4]    FDN 4.

   [5]    FDN 13.

6. On 12 April 2019 I heard the first interlocutory application. It was not opposed and devolved to a discussion around listing the matter on a date convenient to all. That date was 30 April 2019. In the course of the hearing the solicitor for the respondent indicated that he had been interstate and that the application had only come to his attention late in the piece. It is likely that had he had time the appeal could have been listed without the necessity of a court appearance and sufficiently expeditiously to satisfy the appellant.

7. On 16 April 2019 the respondent filed an interlocutory application (the second interlocutory application)[6] seeking an order for security for costs in the amount of $15,000. That application was called on before another judge on 26 April 2019. It was adjourned to the hearing of the appeal.

   [6]    FDN 8.

8. On the hearing of the appeal the second interlocutory application was resolved quickly on a pragmatic basis avoiding any need for the hearing of the appeal to be further adjourned. Thereafter, in the course of the hearing of the appeal, the appellant raised a fresh argument (ground 5). I allowed the appellant to amend its Notice of Appeal and made orders for ground 5 to be dealt with by way of written submissions.

9. As mentioned, on 24 May 2019 I delivered judgment allowing the appeal. I made orders setting aside the orders made by the Magistrate on 8 March 2019 and the default judgment. In arriving at my conclusion I rejected the arguments advanced in support of the Amended Notice of Cross-Contention. I also held that ground 5 was not made out.

10. As also mentioned, the appellant seeks its costs of the application in the Magistrates Court to set aside the default judgment and its costs of the appeal less costs incurred in respect of ground 5. The appellant’s written submissions were silent on whether it sought its costs of the first interlocutory application. I interpreted this silence to mean that the appellant does not pursue its costs of that application. As to the second interlocutory application, the appellant contends that there should be no order as to costs.

11. In reply the respondent contends that in relation to the appeal there should be no order as to costs (including in relation to the first and second interlocutory applications) and that the costs order made by the Magistrate on the hearing of the application to set aside the default judgment (i.e. that the appellant pay the respondent’s costs of and incidental to the application) should not be disturbed.

12. Both this Court and the Magistrates Court enjoy broad discretionary powers as to costs.[7] That said, the general rule is that costs follow the event.

    [7]    Supreme Court Act 1935 (SA), s 40; Magistrates Court Act 1991 (SA), s 37.

13. In relation to the appeal considered in isolation, with the exception of ground 5, nothing takes this case out of the ordinary. I think the appellant’s concession with respect to ground 5 appropriate. I would order that the respondent pay the appellant’s costs of the appeal exclusive of the costs incurred in prosecuting ground 5.

14. I also think that any order for costs in favour of the appellant should not include the first interlocutory application. That was an application seeking an indulgence. I understand the urgency that arose because of the commencement of winding up proceedings, but I am not persuaded that the appellant moved with all due haste. The Notice of Appeal in this Court was filed only just within the 21-day time limit.[8] I would order that the appellant pay the respondent’s costs of the first interlocutory application.

    [8]    Supreme Court Civil Rules 2006 (SA), r 281(1).

15. With respect to the second interlocutory application, it was, as I have said, resolved on a pragmatic basis. No ruling was made. It seemed to me that the application introduced an element of the disproportionate to these proceedings. The judge who dealt with the second interlocutory application on 26 April 2019 attempted to point as much out. I also bear in mind that it would have been obvious that the appellant had a strong case on appeal. In my view no order for costs should be made in relation to the second interlocutory application.

16. That leaves the costs of the application before the Magistrate. The application was occasioned by the appellant’s failure to attend on time on 19 December 2018. Ultimately, however, the application proceeded on notice and with the benefit of considered argument from counsel. I consider that in all the circumstances the parties should bear their own costs of the second application made in the Magistrates Court to set aside the default judgment.[9]

    [9]    The second application is the interlocutory application filed by the appellant in the Magistrates Court on 19 December 2018; see Living Australia Pty Ltd v Rans Consulting Group Pty Ltd [2019] SASC 86 at [22].

17. I order:

    1.The appellant is to pay the respondent’s costs of and occasioned by FDN 2 (the first interlocutory application).

    2.There be no order as to costs on FDN 8 (the second interlocutory application).

    3.The respondent is to pay the appellant’s costs of the appeal less all costs incurred by the appellant in prosecuting the fifth ground of appeal.

    4.There be no order as to costs on the appellant’s second application to set aside the default judgment made in the Magistrates Court.