Manna Hill Mining Company Pty Ltd v Bentlee International Pty Ltd

[2001] SAWC 1

WARDENS COURT OF SOUTH AUSTRALIA

MANNA HILL MINING COMPANY PTY LTD V
BENTLEE INTERNATIONAL PTY LTD

of Senior Warden Cannon

16 August 2001

COSTS

Scale applicable, indemnity, solicitor client, fit for senior counsel

:      MANNA HILL MINING COMPANY PTY LTD
:      MRS SHAW
:     BENTLEE INTERNATIONAL PTY LTD
:      MR STEELE

Hearing Date/s:      16.8.01

File No/s:              DCAAT-01-348

MANNA HILL MINING COMPANY PTY LTD V.
BENTLEE INTERNATIONAL PTY LTD

Senior Warden Cannon

1. The Warden's Court has the power to award reasonable costs.   Although the form of the regulation may differ from other jurisdictions, this court has clarified its view of the meaning.  It has a long standing and uncontested view that this court awards costs in accordance with the usual principals applying to claims in the civil jurisdiction and its starting point as to scale is to award them on the basis of 90% of the Supreme Court scale.  I see no reason to qualify that long standing general practice of the court. 

2. In this matter I am urged to award costs to the successful party on an indemnity basis.  In broad brush what happened here was that a caveat was lodged.  The caveat was apparently purporting to protect an interest in the nature of a share holding.  The applicant sought to have the caveat removed.  The applicant warned the caveator that the applicant would seek indemnity costs.  The caveator would not remove the caveat. 

3. The application came on before me for hearing as part of a normal Wednesday callover list.   The applicant wanted to argue it there and then, claiming particular urgency.  I formed the view that the urgency was not so great as to require it to be argued there and then and I adjourned it to the next day.  When it came on for hearing on the next day, the caveator sought an adjournment.  A basis of that request for adjournment was the recent filing of affidavits.  Another basis was the difficulty in obtaining instructions from a place as remote as Queensland.  I allowed the adjournment and made certain intimations.  It was listed for argument today. 

4. An application to remove the caveat was filed with the Department yesterday.  I now have this application for indemnity costs.  I refer to the decision of the then Justice Olsson in Adelaide Congregation of Jehovah's Witnesses Inc. v. Pegasus Securities Ltd (in liquidation) and Pegasus Leasing Limited, unreported, 24 December 1996, SASC 5968.  At page 3 and 4 his Honour pointed out that each case depends on its particular circumstances and he said

   'It is possible, nevertheless, to perceive certain principals emerging from the authorities.  These may be summarised as under.

   -Indemnity costs are only to be awarded where there is demonstrated to be some special or unusual feature in the case to justify the court in departing from the ordinary practice.

   Colgate Palmolive Co. &; Anor v. Cussons Pty Ltd (1993) 46 FCR 225 at 233. ...

   It is usual to confine orders for indemnity costs to situations in which the court considers that it ought to mark its disapproval of improper conduct on the part of the party ordered to pay costs.  This may be either improper motive or conduct on the part of the party concerned which has inevitably imposed an undue burden on the other party.  Walton V, McBride (1995), 36, NSWLR 440 at p.451 and Casley-Smith v Cussons Pty Ltd (1989) 149 LSTS 483 at p.488.’

5. The conduct complained of here is lodging a caveat over the mining titles.  On the face of it, as I have intimated by my previous remarks, an interest in shares in a company would never give rise to a caveatable interest over its mining titles.  Because the caveat has been withdrawn, I have never had to determine the exact factual circumstances in this case.  I conclude that the obvious fact is, that the caveat, when filed, was filed without merit.  The applicant or plaintor was therefore entitled to take out the application to have the caveat removed and to prosecute that application with all reasonable vigour.  I have already found, and I remain of the view, that the potential prejudice to the applicant was not so great as to require it to be disposed of on the first occasion, or indeed until today. 

6. Taking into account those matters, it is my exercise of discretion in relation to costs that I should award to the applicant costs on a solicitor/client basis.  When making such an award, the court, to be clear, should specify the notional fund from which the funds are to be drawn.  In this respect I am guided by the helpful discussion of his Honour Justice Williams in Citibank v. Pirrotta and others,  Unreported,.  South Australian Supreme Court Full Court judgment, SASC 6603 of 1 April 1998.  In that His Honour clarified that what is often called ‘indemnity costs’ should properly be called in this State solicitor/client costs drawn from the parties own fund.  I am not awarding that.  I am awarding solicitor/client costs meaning exactly that, not from the parties own fund. 

7. I am storing up a problem for myself because I don't have the luxury of a taxing master, so I will give a bit of guidance to myself if I am called upon to tax this matter.  Was the matter a matter that I should certify fit for senior counsel?  In my finding, at the first hearing it was always overly hasty to expect, in all the circumstances here, to have the matter fully argued and determined.  I would not certify that fit for senior counsel.  In relation to the second hearing, the filing of additional affidavit material, rendered that hearing a matter that was always likely to be adjourned, but given the opposition that was in place by then it was reasonable to have senior counsel briefed. In relation to the hearing fixed for today, at the time when I fixed it for today, it was reasonable to have senior counsel briefed, but from the moment that the caveat was withdrawn the amount of costs allowable, of course, are only for the cost argument.  I don't think senior counsel need be briefed for a costs argument. 

8. Liberty to apply.