McIntyre v Quality Roofing Services Pty Ltd (No 2)

In McIntyre v Quality Roofing Services Pty Ltd (No 2), the Full Court of the Supreme Court of South Australia considered subsidiary orders sought by the appellants for an interim judgment of $12,000 and for recovery of their costs incurred in the ERD Court as damages on an indemnity basis. The dispute arose from a prior proceeding in the ERD Court.

The primary legal issues before the Full Court were whether the appellants could recover the costs they incurred in the ERD Court as damages in the current proceedings, and whether an interim judgment for $12,000 should be awarded. The court also considered a request to correct an error in the primary judgment under the slip rule.

The court reasoned that questions concerning costs paid pursuant to orders of the ERD Court were matters for determination by a District Court Judge by way of damages for breach of contract. However, the court affirmed the well-established policy that the costs of legal proceedings are ordinarily not recoverable as damages in other proceedings, citing *Anderson v Bowles* and *Gray v Sirtex Medical Ltd*. The court noted that the ERD Court needed to finalise all outstanding issues of costs in that court before these matters could be fully considered by the District Court Judge.

The Full Court ordered that the appellants recover their costs of the appeal on a party and party basis. It further ordered that the question of whether costs orders made by the ERD Court sounded in damages be heard by a District Court Judge once the ERD Court determined the incidence of costs in its proceedings. Finally, by consent under the slip rule, the court corrected an error in the primary judgment by substituting $27,903 for $27,403.