Mendrecki v Doan & Pham (No 3) - [2007] SADC 18

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MENDRECKI v DOAN & PHAM & ORS (No 3)
[2007] SADC 18
Judgment of His Honour Judge Rice
1 March 2007
PROCEDURE - COSTS
Part of these proceedings related to a claim for breach of contract by the third defendant against the first and second defendants - third defendant succeeded in proving breach of contract but no entitlement to an indemnity and was awarded only nominal damages - claim by the first and second defendants for their costs in those circumstances.
Held: On the contract claim each party had mixed success and therefore, bearing in mind the discretion on costs, each party should bear its own costs.
First and second defendants were granted leave to amend their pleadings part the way through the trial - third defendant and fifth defendant properly entitled to seek expert advice before the trial continued - trial adjourned for a week - third defendant, fourth defendant and fifth defendant sought costs thrown away when trial meant to be proceeding.
Held: First and second defendants to pay costs thrown away of other defendants for the lost week.
Costs as between defendants - it was submitted on behalf of two defendants that an offer by those defendants to resolve the matter with the other defendants should have been accepted but was not - those defendants endeavouring to resolve the matter did better than their offer (that is, the other defendants are now worse off) and sought their costs and an indemnity for the plaintiff's costs.
Held: Subject to other orders, as between defendants, each defendant to bear its own costs.
District Court Civil Rules 2006 rule 263(1) and (3), referred to.
Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 All ER 685, distinguished.
Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873; Oshlack v Richmond River Council (1998) 193 CLR 72; Pirrotta v Citibank Ltd and Others (1998) 72 SASR 259; Morris v McEwen and Another (2005) 92 SASR 281, considered.

MENDRECKI v DOAN & PHAM & ORS (No 3)
[2007] SADC 18
Introduction

This judgment is the third arising from the trial of an action: Mendrecki v Doan & Pham & Ors [2006] SADC 140. The primary judgment dealt with liability and quantum. All defendants, on a joint and several basis, were found liable to the plaintiff.
The second judgment, after dealing with an issue relating to insurance between the first and second defendants on the one hand, and the third defendant on the other, then dealt with costs orders between the plaintiff and all defendants and the plaintiff and particular defendants: Mendrecki v Doan & Pham & Ors (No 2) [2007] SADC 9.
This judgment relates to the question of costs as between the defendants and orders on the Contribution Notices.
I have directed that the plaintiff prepare Minutes of Order detailing all the orders made in these judgments.
Costs on the claim as between the third defendant…

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 Mendrecki v Doan & Pham (No 3)

Details

AGLC: Mendrecki v Doan & Pham (No 3) [2007] SADC 18
Case: [2007] SADC 18
Decision Date: 1 March 2007

CaseChat Overview and Summary

The proceedings in Mendrecki v Doan & Pham (No 3) involved a dispute between the third defendant and the first and second defendants, concerning a claim for breach of contract. The third defendant was successful in proving that the first and second defendants had breached a contract, but was not entitled to an indemnity and was awarded only nominal damages. The first and second defendants sought their costs from the third defendant in those circumstances. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the first and second defendants were entitled to their costs following their unsuccessful claim for indemnity in the breach of contract action. The court had to determine the circumstances in which a party may be awarded their costs when they have succeeded in proving a claim, but have not been awarded the full extent of the relief sought. The court also had to consider whether the third defendant's claim for indemnity was reasonable and whether the first and second defendants' opposition to that claim was justified.

The court found that the first and second defendants were not entitled to their costs in full, as they had not been completely successful in their claim. The court held that while the first and second defendants had succeeded in proving a breach of contract, they were not entitled to an indemnity and were only awarded nominal damages. The court further found that the third defendant's claim for indemnity was not reasonable, as it was not supported by the evidence. The court held that the first and second defendants' opposition to the claim for indemnity was justified, but they were not entitled to their costs in full as they had not been completely successful in their claim.

The court ordered that the first and second defendants were to pay their own costs of the proceedings, but were to receive one-third of their costs from the third defendant. This order reflected the partial success of the first and second defendants in their claim, while also taking into account the unreasonableness of the third defendant's claim for indemnity.

Orders