Mandeville v Better Lending Pty Ltd (No 2) - [2021] SASCA 61

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
MANDEVILLE v BETTER LENDING PTY LTD & ANOR (No 2)
[2021] SASCA 61
Judgment of the Court of Appeal
(The Honourable Justice Doyle, the Honourable Justice Livesey and the Honourable Justice Bleby)
9 June 2021

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS
Following the Court’s decision on 3 May 2021 allowing the appellant’s appeal and dismissing the cross-appeal, the parties made written submissions on the costs of the appeal and of the lower court proceedings.
The appellant seeks orders that the respondent pay her costs of the appeal and cross appeal, as well as her costs of Action 83 of 2016, on an indemnity or solicitor/client basis. She also seeks an order that the sum of $20,000 standing to the credit of Action 84 of 2016 be paid out of court to her.
The respondent seeks a stay of the execution of the judgment, and orders that the $20,000 remain in court pending the outcome of an imminent application of Special Leave to appeal to the High Court. He also seeks that ‘any orders of costs have a full accounting and reconciliation’ reflecting the relative successes of the parties.
Held (by the Court), awarding the appellant 80 per cent of her costs of the appeal and cross appeal on a party/party basis, 90 per cent of her costs in Action 83 of 2016, and ordering that the sum of $20,000 held in the Suitor’s Fund be paid out of Court to the appellant:
1. The respondent has not provided this Court with any evidence of the state of the intended application for Special Leave to appeal and there is nothing to indicate that the its rights would be rendered nugatory in the event of a stay not being granted.
2. This Court is best placed to determine the appropriate characterisation of instances of success or failure in the judgment on appeal. It is not necessary, for that purpose, to have a ‘full accounting and reconciliation’ of the parties’ successes and failures.
3. A considerable part of the appellant’s appeal was devoted to issues and arguments that were either unnecessary or on which she was unsuccessful. That should be reflected in the costs order, although the weighting should be in her favour.
4. With respect to Action 83 of 2016, there is no basis to depart from the ordinary principle that costs should be awarded on a party/party basis.
National Consumer Credit Protection Act 2009 (Cth) s 177; Enforcement of Judgments Act 1991 (SA) s 17; Uniform Civil Rules 2020 (SA) r 215.4; High Court Rules 2004 (Cth) r 41.02.1; Supreme Court Act 1935 (SA) s 40, referred to.
Mandeville v Better Lending Pty Ltd & Anor [2021] SASCA 28; Mandeville v Better Lending Pty Ltd & Anor (No 6) [2019] SADC 168, discussed.
Legal Practitioners Conduct Board v Viscariello (No…

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: [2021] SASCA 61
Decision Date: 9 June 2021

CaseChat Overview and Summary

The appeal and cross-appeal concerned the appropriate costs orders following a judgment in Action 83 of 2016. The appellant, Ms. Mandeville, sought an order for 80 per cent of her costs of the appeal and cross-appeal on a party/party basis, 90 per cent of her costs in the original action, and the release of $20,000 held in the Suitor's Fund to her. The respondent, Better Lending Pty Ltd, had indicated an intention to seek special leave to appeal to the High Court.

The Court was required to determine whether to grant a stay of the costs orders pending any potential special leave application, how to characterise the parties' respective successes and failures for the purpose of allocating costs, and whether to depart from the usual principle of awarding costs on a party/party basis in the original action.

The Court reasoned that no stay of the costs orders was warranted as the respondent had failed to provide evidence of its intended application for special leave to appeal, nor had it demonstrated that its rights would be rendered nugatory without a stay. The Court held that it was best placed to assess the relative success and failure of the parties on appeal, and that a "full accounting and reconciliation" was not necessary for this purpose. While acknowledging that a considerable portion of the appellant's appeal was unnecessary or unsuccessful, the Court found that the overall weighting should favour the appellant. Regarding Action 83 of 2016, the Court found no basis to depart from the ordinary principle that costs should be awarded on a party/party basis.

Accordingly, the Court ordered that the appellant be awarded 80 per cent of her costs of the appeal and cross-appeal on a party/party basis, 90 per cent of her costs in Action 83 of 2016, and that the sum of $20,000 held in the Suitor's Fund be paid out of Court to the appellant.

Orders

Orders of the court

Held (by the Court), awarding the appellant 80 per cent of her costs of the appeal and cross appeal on a party/party basis, 90 per cent of her costs in Action 83 of 2016, and ordering that the sum of $20,000 held in the Suitor’s Fund be paid out of Court to the appellant:

1. The respondent has not provided this Court with any evidence of the state of the intended application for Special Leave to appeal and there is nothing to indicate that the its rights would be rendered nugatory in the event of a stay not being granted.

2. This Court is best placed to determine the appropriate characterisation of instances of success or failure in the judgment on appeal. It is not necessary, for that purpose, to have a ‘full accounting and reconciliation’ of the parties’ successes and failures.

3. A considerable part of the appellant’s appeal was devoted to issues and arguments that were either unnecessary or on which she was unsuccessful. That should be reflected in the costs order, although the weighting should be in her favour.

4. With respect to Action 83 of 2016, there is no basis to depart from the ordinary principle that costs should be awarded on a party/party basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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