Marshall v Townsend (No 2) - [2008] SADC 59

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MARSHALL & ANOR v TOWNSEND & ORS (No 2)
[2008] SADC 59
Judgment of Her Honour Judge Shaw
14 May 2008
PROCEDURE - COSTS
Plaintiff succeeding against one of five defendants - solicitor/client costs - Sanderson order - contribution notices - exercise of discretion in plaintiff's favour
Forlyle Pty Ltd v Tiver & Anor [2007] SASC 464; Duke Group Ltd (In Liq) v Pilmer & Ors (No 8) [1998] SASC 6699; Shaw v Jarldorn (1999) 76 SASR 28; Fennell v Supervision and Engineering Services Holdings Pty Ltd & Santos Ltd (1988) 47 SASR 6; Gould v Vaggelas (1985) 157 CLR 215; Walker & Anor v Corporation of the City of Adelaide & Ors (No 2) [2004] SASC 139; Skerbec v McCormack [2008] ACTSC 4, considered.

MARSHALL & ANOR v TOWNSEND & ORS (No 2)
[2008] SADC 59
Introduction

On 20 December 2007, I delivered my judgment in this action in relation to liability. I found that the fifth defendants (“Neale”) were liable in damages to the plaintiff (“Marshall”) for injuries suffered by him when he fell from a ladder at a building site. Marshall’s claim against the first, second, third and fourth defendants was dismissed. I made no orders in relation to the contribution notices, which had been exchanged between the defendants. On 15 January 2008, judgment was entered. Subsequently, I heard argument and received affidavits from the parties in relation to costs.
The first and second defendants were owners of the property, which Neale was renovating. The third defendant, a company controlled by the first two defendants, had provided certain labour to Neale for the purpose of assisting him with the work. The fourth defendant (“Telford”) was present at the site at the time of Marshall’s fall in order to meet a representative of Marshall’s employer.
The trial proceeded as to liability alone, as quantum was eventually agreed in the sum of $660,000.00.
Orders Sought by Marshall
Mr Peek QC who appeared for Marshall, submitted that Neale ought to pay Marshall’s costs on a solicitor and client basis. He further submitted that it was a proper case for those costs to be certified as fit for senior and junior counsel. It was submitted in addition, that Neale ought to pay the costs of action of each of the first four defendants, on a party and party basis, which ought to include the respective contribution notices. Finally, it was submitted that Neale ought to pay Marshall interest on the judgment sum of $660,000.00 from 20 December 2007, calculated at the rate of 6.5%.
General Rule
The general rule is that costs follow the event[1]. If the general rule was applied, Marshall is entitled to his costs against Neale. Each of the first four defendants should have their costs against Marshall as he failed against them.
[1] 6 DCR 263(1); Forlyle Pty Ltd v Tiver & Anor [2007] SASC 464 at [29]; Duke Group Ltd (In Liq) v…

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.

Continue reading Marshall v Townsend (No 2)

Details

AGLC: Marshall v Townsend (No 2) [2008] SADC 59
Case: [2008] SADC 59
Decision Date: 14 May 2008

CaseChat Overview and Summary

The matter before the court involved the plaintiff, Marshall, who was successful against one of the five defendants, Townsend. The case focused on the issue of solicitor/client costs, specifically concerning the application of a Sanderson order and the exercise of the court's discretion in relation to contribution notices. The court was required to determine whether the plaintiff was entitled to recover costs from the unsuccessful defendant, despite the fact that a Sanderson order had been made, and whether the exercise of the court's discretion in favour of the plaintiff was appropriate.

The primary legal issue before the court was whether the plaintiff could recover costs from the defendant despite the presence of a Sanderson order. The court had to consider whether the making of such an order precluded the plaintiff from recovering costs from the defendant, and if so, whether the order should be set aside or modified. Additionally, the court needed to examine the exercise of its discretion in relation to contribution notices and whether it was appropriate to grant the plaintiff's application for costs in this context.

In determining the matter, the court considered the relevant legal principles and authorities concerning Sanderson orders and the exercise of discretion in relation to costs. The court found that the presence of a Sanderson order did not necessarily preclude the plaintiff from recovering costs from the defendant. Instead, the court held that the appropriate course of action was to exercise its discretion in favour of the plaintiff and grant the application for costs. The court found that the exercise of its discretion in this case was appropriate, given the circumstances of the case and the need to ensure a just outcome for the parties involved.

As a result of the court's decision, the plaintiff was granted the right to recover costs from the defendant, despite the presence of a Sanderson order. The court's decision emphasised the importance of considering the specific circumstances of each case when exercising its discretion in relation to costs. The final orders of the court reflected this outcome, with the plaintiff being awarded costs against the defendant in accordance with the court's discretion.

Orders