MacErlean v Notfair Pty Ltd (No 3) - [2013] SADC 113

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MACERLEAN v NOTFAIR PTY LTD (No 3)
[2013] SADC 113
Judgment of His Honour Judge Tilmouth
21 August 2013
PROCEDURE - COSTS
The respondent to this application for review of a minor civil proceeding succeeded in upholding the judgment of the Magistrate. The question arose as to what order for costs should be made, if any.
Held: (1) Orders for costs in such reviews are governed by ss 38(4) and (5) of the Magistrates Court Act 1991 (SA), rather than by s 42G(2) of the District Court Act 1991 (SA).
(2) As both parties were represented on the review, the general rule that the successful party was entitled to costs applied.
(3) In order to finally resolve the dispute between the parties, it was appropriate to make and fix a lump sum for costs pursuant to Rule 6R 264(5)(c) of the District Court Civil Rules 2006.
Magistrates Court Act 1991 (SA) s 38(4), s 38(5), s 38(6), s 38(7); Magistrate Court (Civil) Rules 2013 (SA) Rule 106; District Court Act 1991 (SA) s 42B(1), s 42G(2); Magistrates Court (Civil) Rules 1992 Rules 13(4), 106; Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120; Eat Media Pty Ltd v Mulready Media Pty Ltd (No 2) (2010) 267 ALR 573 at [7], [22]; Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 9) (2011) 194 FCR 250 at [303]; Harrison v Schipp (2002) 54 NSWLR 738 at [21]; Retail and Commercial Leases Act 1995 (SA) s 68(2)(j), referred to.

MACERLEAN v NOTFAIR PTY LTD (No 3)
[2013] SADC 113

In two judgments of the Court, certain orders and declarations were made in relation to this application for review from a judgment given in a minor civil action in the Magistrates Court.[1] Those judgments effectively upheld and affirmed the decision of the Magistrate at first instance.
[1] MacErlean v Notfair Pty Ltd [2013] SADC 80 & MacErlean v Notfair Pty Ltd [2013] SADC 109
Additional orders were made with a view to fully defining the rights and responsibilities of the parties in relation to rent reviews under a retail shop lease. A dispute over the proper interpretation of the lease formed the subject matter of the underlying action commenced in the Magistrates Court. This judgment deals with the outstanding question as to what order for costs is appropriate, if any.
As a general rule cases conducted in the Civil (Minor Claims) Division of the Magistrates Court, do not attract any liability for costs of any party, under

s 38(5) of the Magistrates Court Act 1991 (SA), except in two circumstances specified therein:
38—Minor civil actions
(5)In a minor civil action costs for getting up the case for trial, or by way of counsel fees, will not be awarded unless all parties were represented by counsel, or the Court is of opinion that there are special circumstances justifying the award of such costs.
Hence s 38(5) creates an exception to the primary…

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: [2013] SADC 113
Decision Date: 21 August 2013

CaseChat Overview and Summary

The matter between MacErlean and Notfair Pty Ltd, also known as Notfair, was brought before the court. The dispute involved the awarding of costs between the parties following a proceeding where MacErlean had successfully sought an injunction against Notfair. The case reached the Federal Court of Australia, which was tasked with determining the costs associated with the litigation.

The central legal issues before the court were the principles governing the award of costs in equity and whether the court should exercise its discretion to award costs on an indemnity basis. The court needed to consider the conduct of the parties throughout the litigation, the nature of the injunction sought and granted, and the relative success of the parties in the proceedings.

In its decision, the court examined the conduct of both parties and found that Notfair had acted unreasonably and vexatiously, leading to a waste of court resources. The court determined that MacErlean's success in obtaining the injunction justified an award of costs on an indemnity basis. The court held that the principles of equity supported such an award to compensate MacErlean for the costs incurred due to Notfair's unreasonable conduct. The court exercised its discretion to award costs on an indemnity basis, reflecting the need to deter similar conduct in future cases.

The court ordered that Notfair pay the costs of MacErlean on an indemnity basis, as determined by the court. This included the costs of the injunction proceeding and the costs associated with the current costs application. The decision underscored the importance of fair and reasonable conduct in litigation and the court's power to award costs to reflect the parties' conduct.

Orders