McEntee v SJ Berry Pty Ltd - [2021] SADC 122

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
MCENTEE & ANOR v SJ BERRY PTY LTD & ORS
[2021] SADC 122
Reasons for Decision of his Honour Judge O'Sullivan
12 November 2021
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL MATTERS - GENERALLY
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - INDEMNITY COSTS - RELEVANT CONSIDERATIONS GENERALLY
The applicants were successful in their claims against all four respondents. In the period leading up to trial, the applicants had made a number of formal offers which were bettered by the judgment. The applicants apply for indemnity costs
Held:
1. The respondents jointly and severally pay the applicants’ costs of and incidental to the proceedings for the period up to and including 24 February 2020 on a party-party basis;
2. For the period between 25 February 2020 and 10 April 2020, the first and second respondents jointly and severally pay the applicants’ costs of and incidental to the proceedings on a party-party basis;
3. For the period between 25 February 2020 and 10 April 2020, the third and fourth respondents jointly and severally pay the applicants’ costs of and incidental to the proceedings on an indemnity basis.
4. As from 11 April 2020, the respondents jointly and severally pay the applicants’ costs of and incidental to the proceedings on an indemnity basis.
McEntee & Anor v SJ Berry Pty Ltd & Ors [2021] SADC 102, considered.

MCENTEE & ANOR v SJ BERRY PTY LTD & ORS
[2021] SADC 122
Introduction

On 27 August 2021, I published my reasons in this matter.[1]
[1] McEntee & Anor v SJ Berry Pty Ltd & Ors [2021] SADC 102
On 8 September 2021, I entered judgment for the applicants against the first, second, third and fourth respondents, jointly and severally in the amount of $167,500, together with pre-judgment interest in the amount of $37,743. That day I also heard argument on the question of costs and reserved my decision.
Just prior to delivering my decision on costs, I was asked by the applicants to not deliver my decision on costs whilst they investigated a further issue.
On 11 November 2021, the applicants asked me to proceed to deliver my decision on costs. This is that decision
Documents relied upon
The applicants rely on their written submissions, together with the affidavit of Andrew Nicholas Wesley Bullock sworn 7 September 2021 (“Bullock affidavit”).
The first and second respondents rely on their written and oral submissions.
The third and fourth respondents made oral submissions.
Applicants' application for costs
The applicants seek indemnity costs of the proceedings or part of the proceedings on two bases:
1.First, by achieving an award of damages more favourable than offers made by them; and/or
2.The findings made in relation to the respondents’ conduct insofar as it bears upon their conduct of the litigation.
Offers
The offers made by the applicants are summarised in a table set out in a letter from the applicants’ solicitors to…

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 McEntee v SJ Berry Pty Ltd

Details

AGLC: McEntee v SJ Berry Pty Ltd [2021] SADC 122
Case: [2021] SADC 122
Decision Date: 12 November 2021

CaseChat Overview and Summary

The case of McEntee v SJ Berry Pty Ltd involved a dispute over indemnity costs within civil proceedings in the courts of a state or territory. The applicants sought indemnity costs against the respondents for various periods of the proceedings. The matter was heard and determined by a court, which addressed the applicants' claims for costs on different bases and timeframes.

The primary legal issue the court had to decide was the appropriate basis and amount of costs to be awarded to the applicants for various periods of the proceedings. The applicants argued for indemnity costs, which are higher than the usual party-party costs, on the grounds that the respondents' conduct was unreasonable and vexatious. The court had to consider the relevant factors to determine whether indemnity costs were justified, including the nature of the proceedings, the conduct of the parties, and the circumstances leading to the costs being incurred.

The court evaluated the applicants' claims for indemnity costs, considering the conduct of the respondents and the circumstances of the case. The court concluded that the applicants were entitled to costs on a party-party basis for the initial period, but for subsequent periods, the court found that the respondents' conduct warranted indemnity costs. The court reasoned that the respondents' actions were unreasonable and vexatious, justifying the higher indemnity costs. The court also found that from a certain date onwards, the respondents' conduct warranted indemnity costs for all future costs incurred by the applicants.

The court ordered that the respondents were to pay the applicants' costs of and incidental to the proceedings on different bases and for different periods. For the initial period, the respondents were ordered to pay party-party costs. For subsequent periods, the respondents were ordered to pay indemnity costs. The court's final orders specified the precise amounts and bases of costs to be paid by the respondents to the applicants.

Orders

Orders of the court

Held:

1. The respondents jointly and severally pay the applicants’ costs of and incidental to the proceedings for the period up to and including 24 February 2020 on a party-party basis;

2. For the period between 25 February 2020 and 10 April 2020, the first and second respondents jointly and severally pay the applicants’ costs of and incidental to the proceedings on a party-party basis;

3. For the period between 25 February 2020 and 10 April 2020, the third and fourth respondents jointly and severally pay the applicants’ costs of and incidental to the proceedings on an indemnity basis.

4. As from 11 April 2020, the respondents jointly and severally pay the applicants’ costs of and incidental to the proceedings on an indemnity 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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